Petition for Writ of Certiorari — Chauffeurs, Teamsters & Helpers Local Union No. 238 v. CRST, Inc.
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FILED
86 -6 09 \ ~ Supreme Court 7
No. OCT 14 1986
Joao. SPANIOL, JR
IN THE aetna =:
Supreme Court of the United States
OCTOBER TERM, 1986
CHAUFFEURS, TEAMSTERS AND HELPERS,
LOCAL UNION NO. 238,
Petitioner,
CRST, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Neil A. Barrick
BARRICK LAW OFFICE
2525 E. Euclid Avenue, Suite 102
Des Moines, lowa 50317
Attorney for Petitioner
October 14, 1986
(i)
QUESTION PRESENTED
Whether respondent is required to submit a discharge
grievance to binding arbitration pursuant to the grievance
procedures of an expired collective bargaining agreement.
INDEX
Page
Dees ks edad ea kenad sea usin sa tees i
tere titre hvkacteeG bance a caeees ees l
RS a re ere ae 2
EY gs kc hake koe sdycesnesenssvess 2
Pere Pree COMPAIVETINGS BPTE WRIT... ww ccc eee 4
The Decision of the Eighth Circuit Respecting
CRST’s Obligation to Arbitrate Is Not In Accord
With Applicable Decision of This Court
eee Las hpi eee ba sae pede nea es 8
APPENDIX
A. Order of the United States District Court for
er A-l
a A-5
C. Opinion of the United States Court of Appeals
ee avan cans edeesesaee oe A-6
D. Opinion of the United States Court of Appeals
Sor the Bagmtn Circus, en banc ..............-..0005, A-22
(iv)
CITATIONS
Cases: Page
NLRB vy. Crompton-Highland Mills, Inc.,
Re ee I hh eck EWG ES Leica e Se tae vc due es 5
Nolde Brothers, Inc. v. Local 358, Bakery and
Confectionery Workers Union, AFL-CIO,
a TEE Gai ea ek bck bees ek hehas ea we 4,5, 6,7,8
United Steelworkers of America, AFL-CIO v. Fort
Pitt Steel Casting Division-Conval-Penn, Inc.,
ee ee re ono bk oe 6 Ob sd ceria wy ee de eae 5
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
No.
CHAUFFEURS, TEAMSTERS AND HELPERS,
LOCAL UNION NO. 238,
Petitioner,
CRST, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner, Chauffeurs, Teamsters and Helpers, Local
238 [Union], petitions for a writ of certiorari to review the
judgment and decision of the United States Court of Ap-
peals for the Eighth Circuit entered in this case on July 16,
1986.
OPINIONS BELOW
The order and judgment of the United States District
Court for the Southern District of Iowa (App. A, B) are
not officially reported. Jurisdiction of the District Court
was conferred by 29 U.S.C. §185(a). The panel opinion
and judgment of the Court of Appeals, reported at 780
F.2d 379 (8th Cir. 1986), and en banc opinion and judg-
ment, which is officially unreported at this time, are set
forth in Appendices C, D, and E.
JURISDICTION
Jurisdiction of this Court to review, by writ of cer-
tiorari, the judgment and decision of the United States
Court of Appeals for the Eighth Circuit is invoked under
28 U.S.C. §1254(1).
STATEMENT OF THE CASE
Petitioner, Chauffeurs, Teamsters and Helpers, Loca!
238 [Union], a labor organization, represents certain em-
ployees of respondent, CRST, inc. [Employer], a trucking
firm, for purposes of collective bargaining pursuant to the
provisions of the National Labor Relations Act.
On June 30, 1982, a collective bargaining agreement
between the parties covering the over-the-road employees
at Cedar Rapids, Iowa, expired. The parties were unable
to reach an agreement on a successor agreement and on
December 27, 1982, the Employer placed in effect wages,
hours and other working conditions consistent with its
final offer made to the Union. These provisions were for-
warded to the Union and also posted on the Employer’s
premises in Cedar Rapids, Iowa.
In July, 1983, employee Jerry Ottoway, was terminated
following an accident for which the Employer determined
he was responsible. Mr. Ottoway claimed to have been dis-
charged without just cause and filed a grievance with the
Union. The Union pursued the matter according to proce-
ee Ne |
dures prescribed in the expired agreement. The Employer
refused to arbitrate the grievance asserting there was no
agreement in effect between the parties containing such a
requirement.
The Union filed suit in the United States District Court
for the Northern District of lowa seeking an order com-
pelling the Employer to submit the grievance to arbitra-
tion. The Employer moved for Summary Judgment claim-
ing no agreement between the parties requiring arbitration
subsequent to the contract termination in July, 1982. The
Union resisted claiming the unilateral schedule imple-
mented by the Employer in December, 1982, referred to
resolution of seniority disputes through “the grievance
procedure” and that without such a procedure, the lan-
guage would be superfluous and also that the unilateral
schedule was consistent with the Employer’s final offer
and that a grievance procedure had been a part of this last
offer.
On January 31, 1985, the District Court granted the
Employer’s Motion for Summary Judgment. The Court
held, even if defendant’s schedule is considered a contract,
it does not provide procedures for grieving an employee
discharge. The only grievable matters, under the schedule,
are seniority dates and positions on the seniority list.
Plaintiff was clearly attempting to grieve Ottoway’s dis-
charge, not his seniority date or position on the seniority
list.
A panel of the United States Court of Appeals for the
Eighth Circuit reversed holding the Employer to a duty to
arbitrate Ottoway’s grievance due in part to the ambiguous
nature of its final offer and the reference therein to a
grievance procedure and concluding that ambiguous terms
should be construed against the drafter. The Court also
concluded that this decision did not interfere with the
Employer’s right to act unilaterally after bargaining to im-
passe. (App. C, p. 1).
The circuit court granted the Employer’s request for
hearing en banc and thereafter affirmed the decision of the
District Court concluding that the grievance did not arise
under the expired agreement or occur within a reasonable
time after its termination and that the Employer’s unila-
teral schedule did not allow for grievance procedures ex-
cept in limited circumstances not applicable to the case.
(App. D., p. A-22)
REASON FOR GRANTING THE WRIT
The Decision of the Eighth Circuit Court Re-
specting CRST’s Obligation to Arbitrate Is Not
In Accord With Applicable Decision of This
Court.
ARGUMENT
Federal Labor policy favors arbitration as the method
of resolving disputes related to collective bargaining
agreements and there is a presumption that parties intend
arbitration provisions to survive the expiration of agree-
ments as to disputes which arise under a contract. Nolde
Brothers, Inc. v. Local 358, Bakery and Confectionery
Workers Union, AFL-CIO, 430 U.S. 243, 250 (1977). The
Supreme Court further observed therein that:
“In the absence of some contrary indication,
there are strong reasons to conclude that the par-
ties did not intend their arbitration duties to ter-
minate automatically with the contract . . . while
the termination of the collective bargaining agree-
ment works an obvious change in the relation-
ici iia ail
ship between employer and union it would have
little impact on many of the considerations
behind their decision to resolve their contractual
difference through arbitration.”
Nolde, supra at 253-254. The dispute involved herein
whether an employee may be discharged without “just
cause,” raises a question on a continuing right vested
under the contract as was the right to severance pay in-
volved in Nolde. The majority decision of the Circuit
Court, which did not require arbitration on this dispute,
however, relegates all employees upon termination of the
collective bargaining agreement to a status of mere em-
ployment-at-will. This is clearly contrary to the Court’s
finding in Nolde.
Although it is clear that once impasse in negotiations has
been reached, an employer has the right to unilaterally in-
stitute terms and conditions of employment and in doing
so is not bound to those contained in the expired agree-
ment. Courts have also recognized that an employer may
act unilaterally after impasse only if its action is rea-
sonably comprehended within its pre-impasse bargaining
proposals. United Steelworkers of America, AFL-CIO v.
Fort Pitt Steel Casting Division-Conval-Penn, Inc., 635
F.2d 1071, 1078 (3rd Cir. 1980); NLRB v. Crompton-High-
land Mills, Inc., 337 U.S. 217 (1949). The unilateral sche-
dule implemented by CRST, Inc. made reference to “the
grievance procedure” which clearly indicates that it intend-
ed to retain a grievance procedure in its continuing rela-
tionship with the Union and the employees. The schedule
nowhere expressly rejected the use of grievance procedures
for issues other than seniority. As was persuasive and con-
trolling in Nolde, supra, the parties’ failure to exclude
from arbitrability contracted disputes arising after ter-
mination, far from manifesting an intent to have arbi-
tration obligations cease with the agreement, affords a
basis for concluding they intended to arbitrate all griev-
ances arising out of the contractual relationship. No/de,
430 U.S. at 255.
CRST additionally created a duty to submit disputes
arising regarding terms and conditions of employment to a
grievance procedure, by its representation implementing
working conditions consistent with its final offer to the
Union. This conclusion was supported by the Employer’s
failure to expressly exclude from the scope of “the griev-
ance procedure” contained in its unilaterally implemented
agreement, a/l/ issues except seniority. This conclusion is
reinforced by the Supreme Court’s observation:
“(t]he contracting party’s confidence in the ar-
bitration process and an arbitrator’s presumed
special competence in matters concerning bar-
gaining agreements does not terminate with the
contract nor would their interest in obtaining a
prompt and inexpensive resolution of their dis-
putes by an expert tribunal. Hence, there is little
reason to construe this contract to mean that the
parties intended their contractual duty to submit
grievances and claims arising under the contract
to terminate immediately on the termination of
the contract; the alternative remedy of a lawsuit
is the very remedy the arbitration clause was
designed to avoid.”
Nolde, 430 U.S. at 254.
The majority opinion of the Eighth Circuit Court of Ap-
peals reached a conclusion that No/de was inapplicable by
adopting the theory which was advocated by two dissen-
ters in Nolde and rejected by the majority of the Supreme
Court. The dissenters in No/de argued that:
“The right in dispute, though claimed to arise
under the contract, ripened only after the con-
tract had expired and the employment relation-
ship had terminated.”
430 U.S. at 258. The majority opinion in Nolde, however,
stated:
“However, it is clear that, whatever the outcome,
the resolution of that claim hinges oi the inter-
pretation ultimately given the contract clause
providing for severance pay. The dispute, there-
fore, although arising after the expiration of the
collective bargaining contract, clearly arises un-
der the contract.”
Id. at 249. The question of whether the emplovee herein
was wrongfully discharged in violation of the terms of a
collective bargaining agreement which had expired clearly
hinges on the interpretation ultimately given the contract
clause dealing with discharge without cause and, there-
fore, clearly falls within the rationale as set forth in No/de.
The Eighth Circuit Court should have applied the No/lde
presumption and once this was done it would have become
apparent that the employer did not meet its obliga-
tion to make clear that post-expiration grievances were no
longer arbitrable. The Supreme Court’s opinion in No/lde
would require a result different from that reached by a
majority of the Eighth Circuit Court of Appeals. As the
Supreme Court stated:
“The parties must be deemed to have been cons-
cious of this policy [of favoring arbitration of
labor disputes] when they agree to resolve their
contractual differences through arbitration.
Consequently, the parties’ failure to exclude
from arbitrability contract disputes arising after
termination, far from manifesting an intent to
have arbitration obligations cease with the agree-
ment, affords a basis for concluding that they in-
tended to arbitrate all grievances arising out of
the contractual relationship. In short, where the
dispute is over a provision of the expired agree-
ment, the presumptions favoring arbitrability
must be negated expressly or by clear implica-
tion.”
430 U.S. at 255.
The majority’s opinion is not only contrary to No/de but
allows the Employer to be deceptive in its employment po-
licies and skews this nation’s labor law policy of allowing
the parties to settle their differences on the economic bat-
tlefield after their respective positions have been made
clear.
This Court must review the decision of the Eighth Cir-
cuit herein in light of its own precedent as set forth in
Nolde and the general principles of labor policy present in
this country.
CONCLUSION
Petitioner does not seek to rewrite or redraft the provi-
sions of labor law concerning collective bargaining, im-
passe and duties to arbitrate by pursuing this matter to the
Supreme Court. The Supreme Court has recognized and
declared that a party’s failure to exclude from arbitrability
contract disputes arising after termination of the collective
bargaining agreement affords a basis for concluding that
they intended to arbitrate all grievances arising out of the
contractual relationship.
The majority decision of the Eighth Circuit Court of
Appeals, which had been the minority decision of the
original panel decision of the Eighth Circuit on this case,
clearly is contrary to this precedent because the Court be-
low misapplied the applicable precedent of this Court de-
nying Petitioner and a former employee of the Employer
herein the opportunity to have his discharge reviewed as to
whether or not just cause existed for the same and whether
it violated rights guaranteed by the collective bargaining
agreement, collective bargaining relationship and federal
labor law. This Court should vacate the judgment below
and direct that the grievance of Mr. Ottoway be submitted
to the grievance process consistent with the precedent set
by this Court.
It is respectfully submitted that the Court should grant
this Petition for Writ of Certiorari on the question pre-
sented.
Respectfully submitted,
/s/ Neil A. Barrick
Neil A. Barrick
BARRICK LAW OFFICE
2525 E. Euclid Avenue, Suite 102
Des Moines, lowa 50317
Attorney for Petitioner
October 14, 1986
A-l
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CHAUFFEURS, TEAMSTERS AND
HELPERS, LOCAL UNION 238,
Plaintiff, NO. C 84-21
)
)
)
)
)
VS. ) ORDER
)
)
C.R.S.T., INC. [sic], )
)
)
Defendant.
This matter is before the court on defendant’s resisted
motion for summary judgment, filed September 10, 1984.
Defendant’s request for oral hearing is denied and the mo-
tion is heard on the existing record. Granted.
iaintiff, Chauffeurs, Teamsters and Helpers, Local
Union 238, brought this action in the District Court of the
State of lowa in and for Linn County seeking an order of
specific performance compelling defendant, C.R.S.T.,
Inc. (CRST), to submit a grievance to procedures found in
a collective bargaining agreement between the parties. The
action was removed to this court in accordance with 28
USC § 1441.
The parties’ collective bargaining agreement expired on
June 30, 1982. On December 23, 1982, after the parties
collectively bargained to impasse, defendant unilaterally
A-2
implemented a schedule of wages, hours and conditions. '
Jerry Ottaway was terminated from his employment with
defendant on July 20, 1983 and plaintiff filed a grievance
concerning the termination.
Defendant moves for summary judgment arguing that
no collective bargaining agreement was in effect at any
pertinent time and that it was not required to grieve the
termination. Plaintiff argues that section 2 of CRST’s De-
cember 23, 1982 schedule provided a grievance procedure.’
Summary judgment should not be entered unless the
record indicates that there is no “genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” FRCP 56(c). It is a proce-
dure which advances the salutary objective of avoiding
useless, expensive and time-consuming trials where there is
actually no genuine, factual issue remaining to be tried.
Anderson v. Viking Pump, 545 F.2d 1127, 1129 (8th Cir.
1979). Once a motion for summary judgment has been
made and properly supported, the party opposing sum-
mary judgment may not rest upon the mere allegations or
denials of his pleadings but his response, by affidavits or
otherwise, must set forth specific facts showing that there
'Section 2 of the schedule provides in part:
A list of employees arranged in the order of their seniority
shall be posted in a conspicuous place at their place of
employment... .
Protest to any employee seniority date or position on the
list must be made in writing (30) calendar days after such
seniority date or position first appears, and if no protests
are timely made, the dates and positions posted shall be
deemed correct. Any such protest which is timely made
may be submitted to the grievance procedure.
?Plaintiff has failed to provide a statement of material facts in
dispute as required by Local Rule 2.2.7.
A-3
is a genuine issue for trial. Burst v. Adolph Coors Co., 650
F.2d 930, 932 (8th Cir. 1981). Where the moving party es-
tablishes the absence of any genuine issue of material fact
and the opposing party submits no evidence in rebuttal,
summary judgment is justified. Stovall v. City of St.
Louis, 614 F.2d 619, 621 (8th Cir. 1980).
Both parties agree that the prior collective bargaining
agreement expired on June 30, 1982. The agreement was
not extended by defendant’s implementation of its Decem-
ber 23, 1982 schedule nor should an extension be implied.
See Baker v. Fleet Maintenance, Inc., 409 F.2d 551, 554
(7th Cir. 1969). Plaintiff and defendant did not enter into
any agreement after the collective bargaining agreement
expired and defendant, by the implementation of its sche-
dule, did not manifest its intent to be bound by any other
agreement. See O’Connor Co., Inc. v. Carpenters Local
Union No. 1408, 702 F.2d 824, 825-26 (9th Cir. 1983).
Even if defendant’s schedule is considered a contract, it
does not provide procedures for grieving an employee dis-
charge. The only grievable matters, under the schedule,
are seniority dates and positions on the seniority list.
Plaintiff was clearly attempting to grieve Ottaway’s dis-
charge, not his seniority date or position on the seniority
list.
A-4
It is therefore
ORDERED
Granted.
January 31, 1985.
/s/ Edward J. McManus
Edward J. McManus, Chief Judge
UNITED STATES DISTRICT COURT
Copy sent by certified mail on January 31, 1985 to: (w/judgment)
Neil A. Barrick
850 Ins. Exchange Building, Des Moines, IA 50309
Robert Konchar, Melvin Manning, Kevin Visser
P.O. Box 1943, C.R., IA 52406 w/B of C
/s/ [Illegible]
Deputy Clerk
A-5
APPENDIX B
JUDGMENT IN A CIVIL CASE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
CHAUFFEURS, TEAMSTERS AND )
HELPERS, LOCAL UNION 238, Plaintiff ) C 84-21
Vv )
C.R.S.T., INC. [sic], )
Defendant. )
Edward J. McManus, Chief Judge
DECISION BY COURT. This action came to decision
before the Court with the judge named above presiding. :
The issues have been decided and a decision has been
rendered.
IT IS ORDERED AND ADJUDGED
that the plaintiff take nothing, that the action be dismiss-
ed, on the merits, and that the defendant, C.R.S.T., Inc.
[sic] recover of the plaintiff, Chauffeurs, Teamsters and
Helpers, Local Union 238, its costs of action.
/s/ Wm. J. Kanak
WILLIAM J. KANAK, Clerk
Jan. 31, 1985
FILED
CEDAR RAPIDS HDQTRS OFFICE
NORTHERN DISTRICT OF IOWA
JAN 31 1985
10:20 a
WILLIAM J. KANAK, Clerk
By: /s/ [Iegible]
Deputy
A-6
APPENDIX C
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 85-1301
Chauffeurs, Teamsters and
Helpers, Local Union 238,
Appeal from the
United States District
Court for the North-
ern District of lowa.
Appellant,
vi
C.R.S.T., Inc. (sic),
a £2 8 2 2 © £2 8 =
Appellee.
Submitted: September 10, 1985
Filed: December 30, 1985
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge,
and WOLLMAN, Circuit Judge.
LAY, Chief Judge.
Chauffeurs, Teamsters and Helpers, Local Union 238
(Union) brought suit in Iowa state district court seeking an
order compelling CRST, Inc. (CRST) to submit a griev-
ance filed by Jerry Ottaway, a CRST employee and Union
member, to procedures set out in an expired collective bar-
gaining agreement. Federal jurisdiction over this dispute
exists pursuant to section 3401(a) of the Labor Manage-
ices
A-7
ment Relations Act, 29 U.S.C. § 185(a) (1947). Upon
removal to federal court pursuant to 28 U.S.C. § 1441
(1976), CRST moved for summary judgment, which the
district court! granted. The Union appeals. We reverse
and direct the district court to enter an order requiring
CRST to submit the dispute to the grievance procedure.
From July 1, 1979 through June 30, 1982, CRST em-
ployed truck drivers under a collective bargaining agree-
ment between it and the Union. The parties entered into
negotiations prior to the contract’s expiration, but were
unable to agree on the new contract’s 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 other terms and conditions
of employment consistent with its final offer to the Union,
effective December 27, 1982. The schedule contained no
express grievance procedure. However, the schedule did
provide:
Section 2. Seniority List
* * *
Protest to any employee’s seniority date or posi-
tion on the list must be made in writing to the
employer within thirty (30) calendar days after
such seniority date or position first appears, and
if no protests are timely made, the dates and
positions posted shall be deemed correct. Any
such protest which is timely made may be sub-
mitted to the grievance procedure. (our em-
phasis)
In July 1983, Jerry Ottaway, a truck driver, was
discharged by CRST following an accident for which
'The Honorable Edward J. McManus, Senior United States District
Judge for the Northern District of lowa.
A-8
CRST determined he was responsible. He submitted a
grievance, contending that he was discharged without just
cause. The Union attempted to pursue the grievance to ar-
bitration, following the grievance procedure prescribed in
the expired agreement. CRST refused to arbitrate the
grievance on the grounds that it had not agreed to be
__bound to any grievance or arbitration procedure other
than as provided in its unilateral schedule for seniority
purposes. The Union asserts that the existence of a
grievance procedure may be inferred because CRST’s
unilateral schedule allowed for resolving seniority disputes
through “the grievance procedure.” Without the existence
of some sort of grievance process, this language would be
superfluous. Moreover, as no procedure had been settled
on by the parties, the Union alleges that the procedure in
the expired agreement remains in force. The Union also
argues that the existence of a grievance procedure can be
inferred because CRST represented that the unilateral
schedule was consistent with CRST’s final offer and that a
grievance procedure was a part of this last offer.
In reviewing a district court’s grant of summary judg-
ment, this court applies the same standard as that used by
the district court in granting the motion. Mandel v. United
States, 719 F.2d 963, 965 (8th Cir. 1983). Summary judg-
ment is proper only when there is no genuine issue of ma-
terial fact so that the case may be decided as a matter of
law, and on appeal the non-movant must be given the be-
nefit of every favorable inference that may be drawn from
the evidence. Fed. R. Civ. P. 56(c); Buford v. Tremayne,
747 F.2d 445, 447 (8th Cir. 1984). It is also well settled that
the arbitrability of a particular labor dispute is a question
of law for the courts to decide. Brotherhood of Painters
and Allied Trades of America, Glaziers & Glass Workers
Local Union No. 558 v. Lord & Burnham Construction
Tis cicienieneniaanseamnaiaiaaaiae
9a
Corp., 705 F.2d 998, 999 (8th Cir. 1983). The Union has
presented no affidavits contradicting the facts as establish-
ed by CRST. The inferences drawn by the Union from
those facts do not demonstrate a genuine issue of material
evidentiary fact, but instead illuminate the ultimate legal
issues to be resolved. Though the district court, therefore,
properly proceeded to reach the case’s merits, the question
before us now is whether the district court erred in its
resolution of the merits.
As a general rule, the duty to arbitrate is a creature of
the collective bargaining agreement and a party cannot be
compelled to arbitrate any matter in the absence of a con-
tractual obligation to do so. Nolde Brothers, Inc. v. Local
No. 358, Bakery and Confectionery Workers Union,
AFL-CIO, 430 U.S. 243, 250 (1977). An employer may
not be required to arbitrate a grievance that arises after the
expiration of a collective bargaining agreement when the
event complained of does not occur before the termination
of the contract nor relates to any rights arising under the
expired agreement. See, e.g., O’Connor Co., Inc. v. Car-
penters Union No. 1408 of the United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, 702 F.2d
824, 825 (9th Cir. 1983); Diamond Glass Corp. v. Glass
Warehouse Workers and Paint Handlers Local Union 206,
682 F.2d 301, 303-04 (2d Cir. 1982). Although it is clear
that once impasse in negotiations has been reached, an
employer has the right to unilaterallay institute terms and
conditions of employment and in doing so is not bound to
those contained in the expired agreement, courts have also
recognized that an employer may act unilaterally after im-
passe only if its action is reasonably comprehended within
its preimpasse bargaining proposals. United Steelworkers
of America, AFL-CIO v. Fort Pitt Steel Casting Division-
Conval-Penn, Inc., 635 F.2d 1071, 1078 (3rd Cir. 1980)
A-10
(citing NLRB v. Crompton-Highland Mills, Inc., 337
U.S. 217 (1949)).
Federal labor policy favors arbitration as the method
for resolving disputes related to collective bargaining
agreements and there is a presumption that parties intend
arbitration provisions to survive the expiration of agree-
ments as to disputes which arise under a contract. No/de,
430 U.S. at 254-55. Nolde involved an issue as to whether
a dispute over severance pay was arbitrable after the ex-
piration of a collective bargaining agreement. The Su-
preme Court found the dispute arbitrable on the grounds
that it arose out of the terms of the expired contract. The
Supreme Court further observed in No/de that
in the absence of some contrary indication, there
are strong reasons to conclude that the parties
did not intend their arbitration duties to ter-
minate automatically with the contract. * * *
While the termination of the collective-bargain-
ing agreement works an obvious change in the
relationship between employer and union it
would have little impact on many of the con-
siderations behind their decision to resolve their
contractual differences through arbitration.
Nolde, 430 U.S. at 253-54.
Despite the employer’s recognized right to act unilateral-
ly after impasse, it is equally clear that the employment
relationships which arise under a contract do not exist
separate from it in a vacuum totally void of other relevant
circumstances but continue even after the contract’s ter-
mination. Richardson v. Communication Workers of
America, 443 F.2d 974, 978 (8th Cir. 1971), cert. denied,
414 U.S. 818 (1973). This court emphasized in Richardson
that
A-1l
the collective bargaining agreement is not an or-
dinary contract but rather, in a sense, agglo-
merates a variety of rights and methodology re-
lating to the employer, the union, and the em-
ployees.
*>_* *
The expiration date of a bargaining contract does
not place the employee in jeopardy of losing his
job at the termination of the agreement. In fact
one of the very incentives to union representation
is job security. [The employee, the union which
represents him, the company which employs
him, each contemplate [sic] a “subsisting” con-
tractual relationship for an indefinite period of
time. Cox, The Legal Nature of Collective Bar-
gaining Agreements, 57 Mich. L. Rev. 1 (1958).
Note, 61 Column. L. Rev. 1363 (1961) [sic].
*_* *
The collective bargaining agreement in addition
recognizes seniority rights, which * * * affect
vacation pay, severance pay, pension rights and
the expectancy not to be laid off during slack
periods of work. It has been recognized that
many of these rights may survive the termination
of the agreement.
Richardson, 443 F.2d at 978-79 (citations omitted). It may
reasonably be argued that the dispute involved here, that
Ottaway not be discharged without “just cause” as provid-
ed in the collective bargaining agreement, is as much a
continuing right vested under the contract as was the right
to severance pay in Nolde.
However, we need not decide whether the facts of No/de
are on all fours with this case and controlling here. We
find an even more persuasive reason why Ottaway’s dis-
A-12
charge should be submitted to the grievance process. The
undisputed facts of the case at bar are distinguishable
from cases which involve only the question of what terms
and conditions survive an expired collective bargaining
agreement after impasse. CRST here unilaterally imple-
mented a schedule of terms and conditions of employment
“consistent with its final offer” in which CRST included a
reference to “the grievance procedure” (our emphasis). At
issue here, then, is the meaning to be drawn from CRST’s
reference in its unilateral schedule to “the” grievance pro-
cedure.
In construing this unilaterally implemented term, we
find instructive our reasoning in Taft Broadcasting Co.,
WDAF AM-FM-TV v. NLRB, 441 F.2d 1382 (8th Cir.
1971). In Taft, a draft collective bargaining agreement re-
mained unsigned by the Union due to claimed discrepan-
cies in the version presented to it for execution. The
employer then sent a letter to the union advising that it in-
tended to unilaterally implement wages, hours, and other
terms and conditions of employment as set forth in the
draft agreement, and would continue handling grievances
that arose in the future in accordance with the procedure
set forth in the draft. When the union later filed a
grievance on behalf of an employee discharged after its
unilateral imposition of working conditions, the employer
refused to arbitrate on the grounds that the duty to ar-
bitrate arises only out of a contract and that no executed
contract between the employer and the union existed. This
court disagreed, noting that the NLRB had found the em-
ployer’s letter to be an interim agreement in which the am-
biguous terms regarding arbitration were to be construed
against the employer as the drafter of the agreement. 7Ta/t,
441 F.2d at 1384.
A-13
The district court im i's memorandum order granting
summary judgment to CRST did recognize that CRST’s
unilateral schedule could be seen to constitute a contract
between CRST and the Union. However, in reaching its
conclusion that the only grievable matters under the sche-
dule are seniority dates and positions, the district court
failed to apply the principle of judicial construction of
labor contracts, articulated in Taft, that ambiguities in
contract provisions are to be construed against the drafter,
with all reasonable doubts as to interpretation resolved in
favor of the other party. See Taft, 441 F.2d at 1384; cf.
Ross v. Royal Globe Insurance Co., 612 F.2d 379, 381 (8th
Cir. 1980) (given possible conflicting interpretations of a
contract provision, the district court should adopt the con-
struction which most favors the party who had no part in
preparing the contract).?
Whatever CRST’s intent, the schedule’s silence as to the
submission of other issues besides seniority to the griev-
ance procedure rendered the schedule ambiguous, and
compels us to conclude that the schedule did not preempt
Ottaway’s discharge from being subject to a grievance pro-
cedure. Cf. Johnson Controls, Inc. v. City of Cedar
Rapids, lowa, 713 F.2d 370, 375 (8th Cir. 1983) (court’s
function in construing a contract is to determine the par-
ties’ intent from what is said and not from what they
meant to say); see also Minot Builders Supply Association
v. Teamsters Local 123, 703 F.2d 324, 327-28 (8th Cir.
1983) (discharge was arbitrable where collective bargain-
— —- oe ee
*This court has also stated, in the context of interpreting the terms
of an ERISA plan, that “where one of the parties draws a contract and
the other * * * cannot vary the terms, the burden is upon the party
drawing the contract to make the meaning plain.” Landro v. Glenden-
nine Motorways, Inc., 625 F.2d 1344, 1354 (8th Cir. 1980) (Citations
omitted).
A-14
ing agreement did not state explicitly that discharges are
not subject to arbitration; doubts regarding arbitrability
should be resolved in favor of coverage). It seems clear
from an analysis of CRST’s reference to “the grievance
procedure” in the unilateral schedule that CRST intended
to retain a grievance procedure in its continuing relation-
ship with the Union and the employees. The schedule now-
here expressly rejected the use of grievance procedures for
issues other than seniority. As was persuasive in Nolde,
the parties’ failure to exclude from arbitrability contract
disputes arising after termination, far from manifesting an
intent to have arbitration obligations cease with the agree-
ment, affords a basis for concluding that they intended to
arbitrate all grievances arising out of the contractual rela-
tionship. Nolde, 430 U.S. at 255.
It should be borne in mind here that while the exact
grievance and arbitration procedures proposed by the
Union and CRST during contract negotiations differed,
the inclusion of a grievance procedure in the final contract
was itself never questioned.’ As in Taft, CRST’s unilateral
schedule operates as an interim agreement retaining a
grievance procedure for the resolution of disputes regard-
ing terms and conditions of employment. We think that
this is especially true in a situation where impasse has been
reached and the employer has unilaterally instituted a set
of wages, hours and other working conditions purportedly
‘The record is replete with references to the grievance procedure
proposals advanced by both parties during negotiations. For example,
the August 31, 1984 affidavit of Lawrence B. Pollard, a Director of
Industrial Relations for CRST during the period in question, states
that “proposals by the company spelled out grievance machinery
which only included final and binding arbitration. [The union propos-
ed a different procedure.] Neither grievance procedure was the same
as that contained in the expired collective bargaining contract.”
A-15
consistent with a “final offer.”4 Notwithstanding CRST’s
claims to the contrary, we find that CRST’s intent at the
time it implemented the interim schedule was to continue
using a grievance procedure for resolving disputes to the
same extent contemplated by the expired contract.
CRST thus created a duty to submit disputes arising
under the interim schedule regarding terms and conditions
of employment to a grievance procedure by its representa-
tion that it was implementing working conditions consis-
tent with its final offer to the Union. This conclusion is
supported by CRST’s failure to expressly exclude from
the scope of the grievance procedure all issues except
seniority. Our conclusion is further reinforced by the Su-
preme Court’s observation that:
[t]he contracting parties’ confidence in the ar-
bitration process and an arbitrator’s presumed
special competence in matters concerning bar-
gaining agreements does not terminate with the
contract. Nor would their interest in obtaining a
prompt and inexpensive resolution of their dis-
putes by an expert tribunal. Hence, there is little
reason to construe this contract to mean that the
parties intended their contractual duty to submit
grievances and claims arising under the contract
to terminate immediately on the termination of
the contract; the alternative remedy of a lawsuit
is the very remedy the arbitration clause was
designed to avoid.
‘This court has previously noted that a grievance or arbitration pro-
cedure is a term or condition of employment, NLRB v. Independent
Stave Co., Diversified Industries Division, 591 F.2d 443, 446 (8th Cir.
1979), cert. denied, 444 U.S. 829 (1979) (citing Taft Broadcasting Co.,
WDAF AM-FM-TV v. NLRB, 441 F.2d 1832 (8th Cir. 1971)).
A-16
Nolde, 430 U.S. at 254. CRST’s reference in the schedule
to a grievance procedure indicates that at the time CRST
implemented the unilateral schedule, it contemplated that,
for at least an interim period, employer-employee friction
over working conditions would be resolved by a method of
dispute resolution other than lawsuits.‘
In view of our conclusion that the unilateral schedule’s
ambiguous terms should be construed against the drafter,
we hold that the district court erred in finding that the
schedule’s grievance procedure clause applied only to se-
niority disputes.* Our construction, urged on this court by
the Union, does not interfere with CRST’s right to act
unilaterally after bargaining has reached an impasse, but
merely holds CRST to the reasonable meaning of an ambi-
‘Although the record is not complete, we note that the Union
alleges in its complaint that CRST initially agreed to submit the
dispute to the grievance procedure prescribed under the expired con-
tract, which involved a hearing before the lowa State Joint Area Com-
mittee at its monthly meeting in November, 1983. CRST and the
Union appeared at that time, but prior to commencing the hearing
CRST renounced its intent to submit to the grievance committee pro-
cess on the grounds that the contract, and CRST’s duty under the con-
tract to process grievances, had expired.
*On December 5, 1985, a panel of this court decided Garland Coal &
Mining Co. v. United Mine Workers of America, et al., No 84-2465,
(8th Cir. Dec. 5, 1985). The panel in Garland, relying on specific provi-
sions of the collective bargaining agreement and the parties’ bargain-
ing history, affirmed the trial court’s conclusion that only disputes
based on events occurring while the expired contract was still in effect
were arbitrable. However, the reasoning in Garland is inapposite to
the facts presented before us now. In Garland, a bargained-for con-
tract clause providing [sic] by clear implication that the parties did not
intend that post-expiration grievances would be arbitrable. Here, no
similar clause may be found in the parties’ expired contract. In addi-
tion, in Garland there existed no post-impasse unilateral employer
schedule which continued or reimplemented a _ post-expiration
grievance procedure as is the case here.
A-17
guous term it chose to incorporate in its unilateral sche-
dule.
The grant of summary judgment on behalf of CRST is
reversed and the district court is instructed to enter judg-
ment for the Union requiring the dispute to be submitted
to the grievance process.
A-18
HENLEY, Senior Circuit Judge, concurring and dissent-
ing.
I concur with the court’s finding that there is no genuine
issue of material evidentiary fact and that the case is a pro-
per one for summary judgment. However, I believe also
that the district court properly resolved the merits of the
case, and that its judgment should be affirmed.
Relying largely upon Nolde Bros. v. Local No. 358,
Bakery and Confectionery Workers Union, 430 U.S. 243
(1977), and the alleged ambiguity of the language found in
CRST’s unilateral schedule of hours and wages, the court
today finds a duty to arbitrate.
Heavy reliance is placed on the presumption stated in
Nolde that parties to a labor contract intend arbitration
provisions to survive the expiration of the agreement.
However, very little in the facts here supports the use of
this presumption. In the affidavits submitted with its mo-
tion 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 provided for a grievance procedure only in
limited circumstances; and (4) CRST had rejected all at-
tempts by the Union to arbitrate grievances.
Moreover, the majority’s misplaced reliance on this
presumption pays no more than lip service to the obverse
rule of law that a party cannot be forced into arbitration in
the absence of a contractual obligation. /d. at 250.
The facts do not appear to involve rights of an employee
arising under the contract. Here is involved a dispute over
whether Ottaway should have been discharged because the
A-19
company found he was responsible for an accident which
occurred over a year after the termination of the basic
agreement. In Nolde and other cases where a right to
arbitration has been found after the expiration of an
agreement, the grievance has involved rights which to
some degree vested or accrued during the life of the con-
tract, and merely ripened after termination. See id. at 249
(severance pay); Glover Bottled Gas Corp. v. Local Union
No. 282, International Brotherhood of Teamsters, 711
F.2d 479, 482 (2d Cir. 1983) (discharge of employees ar-
bitrable where all acts leading to discharge occurred before
termination of 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
(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 (1981); cf. Teamsters Local Union 688 v.
John J. Meier Co., 718 F.2d 286 (8th Cir. 1983) (em-
ployees entitled to vacation pay because eligibility require-
ments met before expiration of agreement).
The court here attempts to apply Nolde by stating that
this dispute involves a continuing right, Ottaway’s right
not to be discharged without just cause. But the right to be
discharged for just cause is dissimilar to severance pay and
vacation pay. An employee cannot work towards it or ac-
cumulate it over time. It is strictly a creature of the
employment contract and its life should not extend beyond
contract expiration. See County of Ottawa v. Jaklinski,
No. 73329 (Mich. Nov. 7, 1985).
Next, I would note that the passage of more than a year
between the expiration of the contract and the employee’s
discharge further erodes confidence in using here any pre-
A-20
sumption of arbitrability. The Court in No/de limited its
holding by stating that “we need not speculate as to the ar-
bitrability of post-termination contractual claims which,
unlike the one presently before us, ar> not asserted within
a reasonable time after the contract’s expiration.” Nolde,
430 U.S. at 255 n.8.
Under the majority’s analysis it is difficult to compre-
hend any right which would not be a continuing right. This
would give a much broader meaning to the words “arises
under the contract,” id. at 249, than I believe the Nolde
Court ever intended.
I also believe the majority has erred in finding that
CRST’s unilateral schedule is ambiguous as to grievance
procedures.
It is asserted that because CRST’s unilateral schedule
mentions a right to submit seniority disputes to arbitra-
tion, and is silent as to what other rights may be submit-
ted, the schedule is ambiguous. I see no ambiguity what-
ever. Rather, this clear statement shows explicitly how far
CRST intended arbitration to reach. If it had intended ar-
bitration to reach further, it could have so stated.
Nor can I agree with the court that “[a]s in Taft, CRST’s
unilateral schedule operates as an interim agreement re-
taining a grievance procedure for the resolution of dis-
putes.” See supra at 8. The letter in Taft Broadcasting Co.
v. NLRB, 441 F.2d 1382 (8th Cir. 1971), which was found
to be an interim agreement stated “it is our intention to
continue in effect the wages, hours, and other conditions
of employment presently in effect as fully set forth in the
draft of June 22, 1966, and we will continue handling any
grievances that may arise in accordance with the procedure
set forth therein.” /d. at 1382. This distinguishes Taft
A-21
from the case at hand because here CRST’s unilateral sche-
dule does not broadly agree to arbitrate all controversies,
but rather only disputes concerning seniority.
Finally, I take the majority to task for its attempt to
distinguish Garland Coal & Mining Co. v. United Mine
Workers, No. 84-2464 (8th Cir. Dec. 5, 1985), from this
case. See supra at 10, n.6. The majority states that in
Garland there was not a unilateral schedule “which con-
tinued or reimplemented a post-expiration grievance pro-
cedure as in the case here.” /d. This type of analysis simply
begs the question to be decided.
As indicated, I would affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
A-22
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 85-1301
Chauffeurs, Teamsters and °
Helpers, Local Union 238, +
* — Appeal from the
Appellant, ° United States
° District Court
Vv. ° for the Northern
° District of lowa.
C.R.S.T., Inc. (sic), °
*
Appellee. m
Submitted: May 13, 1986
Filed: July 16, 1986
Before LAY, Chief Judge, HEANEY, ROSS, HENLEY,
Senior Circuit Judge, McMILLIAN, ARNOLD, JOHN
R. GIBSON, FAGG, BOWMAN, WOLLMAN and
MAGILL, Circuit Judges, en banc.
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 Ottaway, an employee
and Union member. The case was removed by defendant’s
motion to the United States District Court for the Northern
A-23
District of lowa' 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 sum-
mary judgment was proper because no genuine issue of fact
remained, the district court erred in its resolution of the
merits. Jd. 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. /d. at 383-84.
The district court was instructed to enter judgment for the
Union and require Ottaway’s grievance to be submitted to
arbitration. Jd. 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 dri-
vers under a collective bargaining agreement between it and
the Union. The parties undertook to negotiate a new con-
tract but were unable to agree on its terms. In December,
'The Honorable Edward J. McManus, now United States Senior
District Judge, Northern District of Iowa.
A-24
1982 CRST notified its employees that an impasse had been
reached and that it was unilaterally implementing a sche-
dule of wages, hours and working conditions consistent
with its final offer to the Union.
In July, 1983 Ottaway was terminated by appellee fol-
lowing an accident for which CRST determined he was re-
sponsible. 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 ar-
bitrate the grievance maintaining that no agreement con-
taining such a requirement was in effect between the par-
ties.
In the affidavits submitted with its motion for summary
judgment, CRST established that: (1) there was no agree-
ment 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 in-
clude 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 ar-
bitrate 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 the parties, the Union alleged that the
procedures in the expired agreement remained in force.
A-25
On appeal, it is suggested that presence of a grievance
procedure can be inferred because CRST’s unilateral sche-
dule of wages was consistent with the Company’s final of-
fer, 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,” 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 Ot-
taway’s discharge.
In determining whether summary judgment should is-
sue, 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 par-
ty 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); Bu-
*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.
A-26
ford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984);
Bouta v. American Federation of State, County & Muni-
cipal Employees, 746 F.2d 453, 454 (8th Cir. 1984), cert.
denied, 105 S.Ct. 1764 (1985).
Appellant has not set forth any evidence which would
contradict the facts as established by CRST. The infer-
ences the Union seeks to raise do not in our view demon-
strate a genuine issue of evidentiary fact, but rather point
up the ultimate issues which must be resolved in interpre-
ting 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 princi-
ples. One is the proposition that the duty to arbitrate a dis-
pute 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 (1960). The other is the federal labor
policy which favors settling disputes through arbitration.
Id. at 582-83.
These policies were dealt with in Nolde Bros. v. Local
358, Bakery and Confectionery Workers Union, 430 U.S.
243, 255 (1977), where the Court held that the right to ar-
bitrate a severance pay dispute survived the expiration of
the collective bargaining agrement. In Nolde the agree-
ment expired while negotiations were ongoing. Approxi-
mately 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.” /d. at 249
A-27
(emphasis in the original)..It also stated the presumption
that arbitration provisions are intended to survive the ex-
piration of collective bargaining agreements. /d. at 255.
This is based on the policy favoring arbitration and the ra-
tionale that the arguments in support of arbitration do not
end with the agreement. /d. In order for this presumption
to be terminated it “must be negated expressly or by clear
implication.” /d.
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. /d. 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 No/lde presumption, we must first
determine whether the disputed right arose under the col-
lective bargaining agreement. See International Brother-
hood of Electrical Workers v. Nanco Electric, Inc., No.
85-2019, slip op. at 4 (8th Cir. May 9, 1986) (per curiam).
How to apply the narrow holding of No/de and its broad
presumption has created some confusion among courts in
determining the arbitrability of post-expiration griev-
ances. See County of Ottawa v. Jaklinski, 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
A-28
No. 282, International Brotherhood of Teamsters, 711
F.2d 479, 482 (2d Cir. 1983) (discharge of employees ar-
bitrable 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);? Diamond Glass Corp. v.
Glass Warehouse Workers and Paint Handlers Local
Union 206, 682 F.2d 301, 303-04 (2d Cir. 1982) (arbi-
tration not required where union failed to state facts show-
ing 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 (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 (1981); cf. Teamsters
Local Union 688 v. John J. Meier Co., 718 F.2d 286 (8th
Cir. 1983) (employees entitled to vacation pay because eli-
gibility 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
30’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 subcon-
tractors on two job sites) where the dispute arose after expiration of
the collective bargaining agreement but before an impasse was reach-
ed. George Dav 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. /d. at 1475.
A-29
cannot be worked towards or accumulated over time. See
Jaklinski, 423 Mich. at ____, 377 N.W.2d at 679. Rather,
it is strictly a creature of the collective bargaining agree-
ment and its life as a matter of contract does not extend
beyond contract expiration.
Also, the facts here do not reveal any events which oc-
curred prior to contract termination. The accident which
resulted in Ottaway’s discharge occurred after the termina-
tion 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 No/de presump-
tion 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 No/de presumption of
doubtful propriety. The Court in No/de limited its holding
by stating that “we need not speculate as to the arbitra-
bility of post-termination contractual claims which, unlike
the one presently before us, are not asserted within a rea-
sonable time after the contract’s expiration.” Nolde, 430
U.S. at 255 n.8. To find that this grievance “arises under
the contract,” id. at 249, would give these words a much
broader meaning than we believe the No/de Court ever in-
tended. This interpretation “would mean that parties to a
collective-bargaining agreement would be presumed to in-
tend that any dispute arising between them years or even
decades after the expiration of the agreement would be ar-
bitrable.” 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
A-30
CRST’s unilateral schedule of wages and hours. The sche-
dule’s mention of a grievance procedure to determine se-
niority rights cannot be interpreted as allowing for arbitra-
tion of all disputes, but rather should be read as a clear
statement showing explicitly how far CRST intended ar-
bitration 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 Broad-
casting 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. /d. at 1383-84. In
that case we held that this letter gave rise to an interim.
agreement to arbitrate grievances. /d. at 1385. No such in-
terim 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 ter-
mination, and because CRST’s unilateral schedule does
not allow for grievance procedures except in the limited
circumstances involving seniority rights, we conclude that
Otiaway’s discharge is not arbitrable.
Accordingly, the judgment of the district court is af-
firmed.
A-31
LAY, Chief Judge, dissenting, with whom HEANEY, Cir-
cuit Judge, concurs.
I dissent.
a
Although I agree that once impasse in negotiations has
been reached, an employer has the right to unilaterally in-
stitute terms and conditions of employment and in doing
so is not bound to those contained in the expired agree-
ment, the majority’s analysis completely ignores the prin-
ciple that an employer may act unilaterally after impasse
only if its action is reasonably comprehended within its
preimpasse bargaining proposals. United Steelworkers of
America, AFL-CIO v. Fort Pitt Steel Casting Division-
Conval-Penn, Inc., 635 F.2d 1071, 1078 (3rd Cir. 1980)
(citing NLRB v. Crompton-Highland Mills, Inc., 337 U.S.
217 (1949)).
Despite an employer’s right to act unilaterally after im-
passe, it is clear that the working conditions which have
characterized an employment relationship does not cease
to exist on the date a collective bargaining agreement ter-
minates. This court emphasized in Richardson v. Commu-
nication Workers of America, 443 F.2d 974, 978 (8th Cir.
1971), cert. denied, 414 U.S. 818 (1973), that
the collective bargaining agreement is not an or-
dinary contract but rather, in a sense, agglo-
merates a variety of rights and methodology re-
lating to the employer, the union, and the em-
ployees.
* * *
The expiration date of a bargaining contract does
not place the employee in jeopardy of losing his
job at the termination of the agreement. In fact
A-32
one of the very incentives to union representation
is job security. The employee, the union which
represents him, the company which employs
him, each contemplate [sic] a “subsisting” con-
tractual relationship for an indefinite period of
time. Cox, The Legal Nature of Collective Bar-
gaining Agreements, 57 Mich. L. Rev. 1 (1958).
Note, 61 Column. L. Rev. 1363 (1961) [sic].
* * *
The collective bargaining agreement in addition
recognizes seniority rights, which * * * affect
vacation pay, severance pay, pension rights and
the expectancy not to be laid off during slack
periods of work. It has been recognized that
many of these rights may survive the termination
of the agreement.
Richardson, 443 F.2d at 978-79 (citations omitted). The
dispute involved here, whether an employee may be dis-
charged without “just cause,” raises a continuing right
vested under the contract as was the right to severance pay
in Nolde Brothers, Inc. v. Local No. 358, Bakerv and
Confectionary Workers Union, AFL-CIO, 430 U.S. 243
(1977). To hold otherwise, as the majority does, relegates
all employees upon termination of the collective bargain-
ing agreement to a status of mere employment at will. No
decision of which I am aware has ever suggested such a
rule until now.
However, there are even more persuasive reasons why
this grievance should be submitted to grievance proce-
dures. The undisputed facts of this case are distinguishable
from cases which involve only the question of what terms
and conditions survive an expired collective bargaining
A-33
agreement after impasse. Here, CRST unilaterally im-
plemented a schedule of wages, hours, and other terms
and conditions of employment “consistent with its final
offer.” Though the unilateral schedule described no detail-
ed grievance procedure, the schedule did provide:
Section 2. Seniority List
* * *
Protest to any employee’s seniority date or posi-
tion on the list must be made in writing to the
employer within thirty (30) calendar days after
such seniority date or position first appears, and
if no protests are timely made, the dates and
positions posted shall be deemed correct. Any
such protest which is timely made may be
submitted to fhe grievance procedure. (our
emphasis).
In construing “the grievance procedure,” we find in-
structive our reasoning in Taft Broadcasting Co., WDAF
AM-FM-TV v. NLRB, 441 F.2d 1382 (8th Cir. 1971). In
Taft, a draft collective bargaining agreement remained un-
signed by the Union due to claimed discrepancies in the
version presented to it for execution. The employer then
set a letter to the union advising that it intended to unila-
terally implement wages, hours, and other terms and con-
ditions of employment as set forth in the draft agreement,
and would continue handling grievances that arose in the
future in accordance with the procedure set forth in the
draft. When the union later filed a grievance on behalf of
an employee discharged after this unilateral imposition of
working conditions, the employer refused to arbitrate on
the grounds that the duty to arbitrate arises only out of a
contract and that no executed contract between the em-
ployer and the union existed. This court disagreed, noting
that the NLRB had found the employer’s letter to be an in-
A-34
terim agreement in which the ambiguous terms regarding
arbitration were to be construed against the employer as
the drafter of the agreement. Taft, 441 F.2d at 1384.
The district court in its memorandum order granting
summary judgment to CRST did recognize that CRST’s
unilateral schedule could be seen to constitute a contract
between CRST and the Union., However, in reaching its
conclusion that the only grievable matters under the sche-
dule are seniority dates and positions the district court,
now joined by the majority, failed to apply the principle of
judicial construction of labor contracts as articulated in
Taft that ambiguities in contract prov sions are to be con-
strued against the drafter, with all reasonable doubts as to
interpretation resolved in favor of the other party. See
Taft, 441 F.2d at 1384; cf. Ross v. Royal Globe Insurance
Co., 612 F.2d 379, 381 (8th Cir. 1980) (given possible con-
flicting interpretations of a contract provision, the district
court should adopt the construction which most favors the
party who had no part in preparing the contract).'
Whatever CRST’s intent, the schedule’s silence as to the
submission of other issues besides seniority to the griev-
ance procedure rendered the schedule ambiguous and com-
pels the conclusion tht the unilateral schedule did not pre-
empt Ottway’s discharge from being subject to grievance
procedures. Cf. Johnson Controls, Inc. v. City of Cedar
Rapids, Iowa, 713 F.2d 370, 375 (8th Cir. 1983) (court’s
function in construing a contract is to determine the par-
ties’ intent from what is said and not from what they
'This court has also stated, in the context of interpreting the terms
of an ERISA plan, that “where one of the parties draws a contract and
the other * * * cannot vary the terms, the burden is upon the party
drawing the contract to make the meaning plain.” Landro v. Glenden-
ning Motorways, Inc., 625 F.2d 1344, 1354 (8th Cir. 1980) (citations
omitted).
A-35
meant to say); see also Minot Builders Supply Association
v. Teamsters Local 123, 703 F.2d 324, 327-28 (8th Cir.
1983) (discharge was arbitrable where collective bargain-
ing agreement did not state explicitly that discharges are
not subject to arbitration; doubts regarding arbitrability
should be resolved in favor of coverage). It seems clear
from CRST’s own reference to “the grievance procedure”
in the unilateral schedule that CRST intended to retain a
grievance procedure in its continuing relationship with the
Union and the employees. The schedule nowhere expressly
rejected the use of grievance procedures for issues other
than seniority. It should be borne in mind here that while
the exact grievance and arbitration procedures proposed
by the Union and CRST during contract negotiations dif-
fered, the inclusion of a grievance procedure in the final
contract was itself never questioned. As in Taft, CRST’s
unilateral schedule operates as an interim agreement re-
taining a grievance procedure for the resolution of
disputes regarding terms and conditions of employment.
This is especially true in a situation where impasse has
been reached and the employer has unilaterallay instituted
a set of wages, hours and other working conditions pur-
portedly consistent with a “final offer.” This court has
previously found that a grievance or arbitration procedure
is a term or condition of employment, NLRB v. Indepen-
dent Stave Co., Diversified Industries Division, 591 F.2d
443, 446 (8th Cir. 1979), cert. denied, 444 U.S. 829 (1979)
(citing Taft Broadcasting Co., WDAF AM-FM-
TV v. NLRB, 441 F.2d 1382 (8th Cir. 1971)).
The record is replete with references to the grievance
procedure proposals advanced by hoth parties during
negotiations. For example, the August 31, 1984 affidavit
of Lawrence B. Pollard, a Director of Industrial Relations
for CRST during the period in question, states that “pro-
A-36
posals by the company spelled out grievance machinery
which only included final and binding arbitration. [The
union proposed a different procedure.] Neither grievance
procedure was the same as that contained in the expired
collective bargaining contract.” Undisputedly, CRST’s of-
fer was never limited to a grievance mechanism applicable
only to seniority issues. Contrary to the history of bargain-
ing between the parties, the majority approves implemen-
tation of a grievance procedure limited to arbitration only
of seniority rights which was not only not comprehended
within CRST’s preimpasse bargaining proposals but total-
ly contrary to the earlier collective bargaining agreement.
This holding has no support in any case law of which I am
aware; the majority cites no authority in support of its un-
precedented analysis.
CRST plainly created a duty to submit disputes arising
under the interim schedule regarding terms and conditions
of employment to a grievance procedure by its representa-
tion that it was implementing working conditions consis-
tent with its final offer to the Union. This conclusion is
reinforced by the Supreme Court’s observation that:
[t]he contracting parties’ confidence in the ar-
bitration process and an arbitrator’s presumed
special competence in matters concerning bar-
gaining agreements does not terminate with the
contract. Nor would their interest in obtaining a
prompt and inexpensive resolution of their dis-
putes by an expert tribunal. Hence, there is little
reason to construe this contract to mean that the
parties intended their contractual duty to submit
grievances and claims arising under the contract
to terminate immediately on the termination of
the contract; the alternative remedy of a lawsuit
is the very remedy of the arbitration clause was
designed to avoid.
A-37
Nolde, 430 U.S. at 254. CRST’s reference to a grievance
procedure indicates that at the time CRST implemented
the unilateral schedule it contemplated that, for at least an
interim period, employer-emp!oyee friction over working
conditions would be resolved by a method of dispute reso-
lution other than lawsuits.
This construction does not interfere with CRST’s right
to act unilaterally after bargaining has reached an im-
passe, but merely holds CRST to the reasonable meaning
of an ambiguous term it chose to incorporate in its unila-
teral schedule. The majority’s analysis glosses over the fact
that CRST did not refer in its unilateral schedule to a
grievance procedure applicable only to seniority, but to
“the” grievance procedure, application of which outside of
seniority disputes was ambiguous. Rather than being the
“clear statement showing explicitly how far CRST intend-
ed arbitration to reach” which the majority describes, the
unilateral schedule’s language is precisely the sort which
should be construed against CRST as the drafter. For the
majority to revise CRST’s imprecise drafting by rewriting
the unilateral schedule to mean what CRST now wishes it
said crosses the bounds of appropriate appellate review
and is contrary to the principles of labor law previously ar-
ticulated by both this court and the Supreme Court.
Judicial application of legal principles often results in
philosophical disagreement with the decision which prece-
dent requires; judicial officers nevertheless must strive to
uniformly apply the law as it exists.
For the reasons set forth above, I dissent.
A-38
HEANEY, Circuit Judge, dissenting, with whom LAY,
Chief Judge, concurs.
The majority opinion is well written and logical. The
problem is that it ignores the facts and is inconsistent with
Chief Justice Burger’s opinion in Nolde.
The majority fails to note that prior to impasse CRST
made a final offer which contained a proposed grievance
and arbitration procedure and continued protection
against discharge without just cause. When the union re-
jected the final offer, CRST informed its employees that
an impasse had been reached in negotiations and that it in-
tended to implement the final offer. It posted a notice
stating: “Since negotiations have reached an impasse and
the prior collective bargaining agreement has expired, the
Company will place into effect wages, hours and other
working conditions consistent with its final offer.”' (Em-
phasis added.) (“December 23, 1982 Notice to All Over-
The-Road Employees,” by Lawrence B. Pollard, Director
of Industrial Relations.)
Under these circumstances, as a matter of simple con-
tract law, CRST remained obligated to continue in effect
the grievance and arbitration procedure contained in its
final offer. The company’s statement unequivocally led its
employees to believe that these critical protections would
continue and that CRST’s proposal was preferable to a
'CRST then distributed a schedule of wages and hours, which con-
tained a reference to “the grievance procedure.” The majority con-
tends that this reference applies only to seniority disputes. however, it
should be noted that the unilateral contract's provisions on employee
discharges also are placed under the heading, “Loss of Seniority.”
Moreover, the schedule nowhere states or implies that there would no
longer be a grievance procedure, or protection from discharge without
cause.
A-39
strike. See Richardson v. Communications Workers of
America, 443 F.2d 974, 978 (8th Cir. 1971), cert. denied,
414 U.S. 818 (1973) (So long as employees continue to be
represented by a union, the working conditions which have
characterized an employment relationship, including the
right to protection from wrongful discharge, do not neces-
sarily cease to exist on the date of contract expiration.).
When its employees remained on the job, CRST’s posted
notice and final offer became a binding unilateral con-
tract.
Even if this explicit language had not been contained in
the company’s final offer and its published statement that
the conditions set forth in the final offer would prevail,
the Supreme Court’s opinion in Nolde would require a
result different than that reached by the majority. As the
Court stated:
The parties must be deemed to have been cons-
cious of this policy [of favoring arbitration of
labor disputes] when they agree to resolve their
contractual differences through arbitration.
Consequently, the parties’ failure to exclude
from arbitrability contract disputes arising after
termination, far from manifesting an intent to
have arbitration obligations cease with the agree-
ment, affords a basis for concluding that they in-
tended to arbitrate a// grievances arising out of
the contractual relationship. In short, where the
dispute is over a provision of the expired agree-
ment, the presumptions favoring arbitrability
must be negated expressly or by clear implica-
tion. [Emphasis added.]
430 U.S. at 255.
Here, although this principle was clearly established in
A-40
1976, the 1979 agreement between CRST and the union
does not indicate expressly or by clear implication that
grievances arising after termination will not be arbitrable.
Nor is there any other evidence in the record which negates
the Nol/de presumption.
The majority reaches the conclusion that No/de is inap-
plicable by adopting an oblique accrual theory which was
advocated by the two dissenters in No/de and rejected by
the seven-justice majority. The dissent in Nolde argued
that “the right in dispute, though claimed to arise under
the contract, ripened only after the contract had expired
and the employment relationship had terminated.” 430
U.S. at 258. The majority stated that, “However, it is clear
that, whatever the outcome, the resolution of that claim
hinges on the interpretation ultimately given the contract
clause providing for severance pay. The dispute,
therefore, although arising after the expiration of the col-
lective bargaining contract, clearly arises under that con-
tract.” Jd. at 249. In other words, when the dispute con-
cerns the interpretation to be given a provision of an ex-
pired agreement, the dispute arises under the contract and
there is a strong presumption of continuing arbitrability.
Here, the dispute is over the wrongful discharge provi-
sions of the expired collective bargaining agreement. Sec-
tion three of CRST’s unilaterally implemented employ-
ment contract, entitled “Loss of Seniority” states:
SECTION 3. LOSS OF SENIORITY
Seniority shall be terminated and the employer-
employee relationship shall be severed by any of
the following:
1. Discharge.
2. Voluntary quit.
A-41
3. Three (3) year layoff without regaining full-
time status.
4. Unauthorized absence for three (3) succes-
sive scheduled work days.
5. Failure to make himself available for work
at the end of ten (10) days after notice of recall is
mailed to his last known address. A copy of the
notice of recall shall be sent to the union.
6. Failure to obtain or comply with leave of
absence provisions as set forth in this agreement.
7. Refusal to accept instructions given by a
proper supervisor of the Company and/or to
perform any work assignment unless it will affect
his health or safety.
This section suggests that CRST’s employees were still pro-
tected against discharge without cause as specified under
the expired collective bargaining agreement, and CRST
never contended in any of the documents in the record or
at oral argument, that its employees are now “employees
at will.” Indeed, it only discharged Jerry Ottaway after
determining, on its own accord, that he was guilty of
“reckless driving.” Recognizing the serious nature of this
charge and its promise to continue protection against
wrongful discharge, CRST, at one point, agreed to submit
this dispute to arbitration, something totally unnecessary
if it believed that it could discharge employees without
cause and without submitting the dispute to arbitration.
The meaning, then, of “discharge” under the unilateral
contract can only be determined by looking back to the
1979 collective bargaining agreement’s provision on pro-
tection from discharge without cause or by looking at the
wrongful discharge provisions of CRST’s final offer. In-
deed, one of CRST’s briefs before the trial court states
A-42
that the underlying dispute is over whether “one of its
[employees] was wrongfully discharged from his employ-
ment by CRST in violation of the terms of a collective bar-
gaining agreement which had expired.” Because, as the
majority held in Nolde, “the resolution of that claim
hinges on the interpretation ultimately given the contract
clause [on discharge without cause], * * * [t]he dispute,
* * * although arising after the expiration of the collective
bargaining contract, clearly arises under that contract.”
Id.
Accordingly, the majority’s theory is wrong on the facts
and on the law. Most importantly, it fails to discuss how
CRST’s posted promise became a unilateral contract to
abide by the grievance procedure. In any event, the Court
should apply the No/de presumption, and, once tlis is
done, it becomes apparent that CRST did not meet its ob-
ligation to make clear that post-expiration grievances were
no longer arbitrable. CRST could easily have added such a
statement to its notice to its employees which alleged that
“other working conditions” would continue in effect.
However, it did not do so. Indeed, CRST did not make
clear its intention not to abide by its “final offer” and its
arbitration and wrongful discharge provisions until it
decided to discharge Jerry Ottaway.
The majority opinion not only is contrary to Nolde, but
it also allows CRST to be deceptive in its employment
policies. Additionally, it skews our labor law policy of
allowing the parties to settle their differneces on the
economic battlefield, after their respective positions have
been made clear. Finally, because the Ottaway wrongful
discharge dispute will in any event be justiciable in federal
district court under Section 301 of the Labor-Management
Relations Act, 29 U.S.C. § 185, the majority opinion sim-
A-43
ply defers resolution of the dispute to a more costly,
inconvenient, and time consuming forum.
WOLLMAN, Circuit Judge, dissenting.
I join in Part II of of Chief Judge Lay’s dissent.
A true copy:
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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