International Brotherhood of E v. Florida Power & Light Company
Filing
Opinion issued by court as to Appellant Florida Power & Light Company. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
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Date Filed: 10/30/2015
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11442
Non-Argument Calendar
________________________
D.C. Docket No. 9:13-cv-80080-KLR
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS SYSTEM COUNCIL U-4,
Plaintiff-Appellee,
versus
FLORIDA POWER & LIGHT CO.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 30, 2015)
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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The plaintiff, a union operating on behalf of certain employees at a nuclear
energy facility, filed suit against the operator of the facility to compel arbitration
after the operator revoked a union employee’s privileges to access the nuclear
facility unescorted.
As a result of having his access privileges revoked, the
employee could not continue working at the nuclear facility. The operator opposed
arbitration on the ground that the dispute was not within the scope of the
arbitration agreement. The district court compelled arbitration, and we affirm.
I.
Defendant-Appellant Florida Power & Light (“FPL”) operates the Turkey
Point nuclear power plant. To operate a nuclear generator, FPL must comply with
certain Nuclear Regulatory Commission (“NRC”) regulations, which state that an
individual must be “trustworthy and reliable” to be granted “unescorted access” to
the nuclear facility. See 10 C.F.R. § 73.56. FPL has enacted policies to comply
with NRC regulations.
Michael Kohl is a long-time FPL employee who worked as a nuclear watch
engineer at Turkey Point. In August 2012, Kohl was arrested for “grand theft.”
Following his arrest, FPL revoked Kohl’s “unescorted access” to the Turkey Point
nuclear facility. Without unescorted-access privileges, Kohl could not continue
working as a nuclear watch engineer at Turkey Point.
Kohl appealed the
revocation of his access privileges to FPL management, who upheld the revocation
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in November 2012. See 10 C.F.R. § 73.56(l) (“The procedure must provide for an
impartial and independent internal management review.”). Ultimately, the grandtheft charges against Kohl were dismissed.
Kohl is a member of Plaintiff-Appellee International Brotherhood of
Electrical Workers System Council U-4 (“IBEW”).
Kohl was covered by a
collective bargaining agreement between IBEW and FPL. The agreement contains
a grievance and arbitration procedure. Grievances advance through a series of
steps in an attempt to settle the dispute. If a grievance remains unresolved, either
party may demand arbitration. Doc. 1–3, Art. IV, ¶ 27(a).
In September 2012, Kohl and IBEW filed a grievance with FPL, stating, “I
Mike Kohl, request that my Nuclear Access be reinstated and I be returned to work
and made whole.” Doc. 1–5. After his access privileges were revoked, Kohl
continued to work for FPL at a different power plant as a maintenance worker, but
he earned substantially less than he did as a nuclear watch engineer.
In November 2012, FPL informed IBEW that it would “not accept a
grievance because it involves a matter that is not disciplinary in nature and is not
subject to grievance and arbitration procedures.” Doc. 1–8. According to FPL,
decisions about nuclear access are governed by NRC regulations, and FPL, “as
licensee, has the sole responsibility to grant or deny unescorted access to its
nuclear facilities.” Id.
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B.
In January 2013, IBEW filed a petition in the United States District Court
for the Southern District of Florida to compel arbitration of the dispute about
Kohl’s access rights. See 29 U.S.C. § 185(a). FPL answered, denying that the
dispute was subject to arbitration under the collective bargaining agreement. In
November 2013, FPL moved to dismiss the petition for lack of subject-matter
jurisdiction. FPL asserted that the case was moot because Kohl’s site-access
revocation had been lifted and he was “now eligible to apply for access
authorization to Turkey Point.”1 The district court granted FPL’s motion and
dismissed the case as moot.
On appeal, this Court vacated and remanded. Int’l Bhd. of Elec. Workers
Sys. Council U-4 v. Fla. Power & Light Co., 580 F. App’x 868 (11th Cir. 2014)
(hereinafter “IBEW”). We held that the district court erred in dismissing the case
as moot because, “even if the issue of nuclear access is moot, IBEW’s request that
Kohl be returned to his previous job and receive back pay is not.” Id. at 869. We
remanded the action to the district court with instructions to determine only
“whether FPL’s determination of ‘access rights’ falls within the arbitration
provisions of IBEW and FPL’s collective bargaining agreement,” such that the
1
According to FPL, because Kohl’s access had been “unfavorably terminated,” NRC
regulations required Kohl to again apply for and complete the unescorted access authorization
process mandated by the NRC.
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agreement “provides the arbitrator with authority to adjudicate this dispute.” Id.
We instructed the court not to consider “issues that go to the merits, such as
whether the NRC regulations render FPL’s actions unreviewable.” Id. (citing Int’l
Bhd. Of Elec. Workers Local 2150 v. NextEra Energy Point Beach, LLC, 762 F.3d
592, 596 (7th Cir. 2014) (hereinafter “NextEra Energy”)).
On remand, the district court granted IBEW’s petition to compel arbitration.
According to the court, a “grievance” under the collective bargaining agreement
“encompasses any conduct by FPL that takes a job benefit away from an
employee, including nuclear access.” Doc. 33 at 3. Finding that “FPL took away
Kohl’s worksite, job title, job duties and reduced his salary[,]” the court concluded
that Kohl’s challenge to these actions through his loss of access to Turkey Point
constituted a valid and arbitrable grievance. Id. at 4. FPL appeals.
II.
“We review de novo a district court order granting a motion to compel
arbitration.” Johnson v. Keybank Nat’l Assoc. (In re Checking Account Overdraft
Litigation), 754 F.3d 1290, 1293 (11th Cir. 2014).
III.
We begin by summarizing the principles governing our review of an
arbitration provision in a collective bargaining agreement, derived from the
Supreme Court’s Steelworkers Trilogy over fifty years ago. See Steelworkers v.
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Enter. Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358 (1960); Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347 (1960); Steelworkers
v. Am. Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343 (1960).
First, because arbitration is simply a matter of contract and consent, AT&T
Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415,
1418 (1986), “a court may order arbitration of a particular dispute only where the
court is satisfied that the parties agreed to arbitrate that dispute,” Granite Rock Co.
v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297, 130 S. Ct. 2847, 2856 (2010)
(emphasis in original).
Second, questions of whether an arbitration agreement covers a particular
dispute are generally for the courts unless the agreement expressly provides
otherwise. AT&T Techs., Inc., 475 U.S. at 649, 106 S. Ct. at 1418. Thus, if an
arbitration provision’s applicability to the dispute is in issue, as it is here, “the
court must resolve the disagreement.” Granite Rock Co., 561 U.S. at 299-300, 130
S. Ct. at 2858 (internal quotation marks omitted).
Third, in deciding questions of arbitrability, “a court is not to rule on the
potential merits of the underlying claims.” AT&T Techs., Inc., 475 U.S. at 649,
106 S. Ct. at 1419. In this case, the previous panel identified “whether the NRC
regulations render FPL’s actions unreviewable” as such a merits issue. IBEW, 580
F. App’x at 869; see also NextEra Energy, 762 F.3d at 596 (“[W]e do not hold that
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the arbitrator may, in fact, review and overturn NextEra’s revocation of Hofstra’s
unescorted access privileges. . . . But the potential weakness of the Union’s claim
on the merits is no defense to the arbitrability of this dispute, as a threshold
question.”).
Fourth, and finally, “where the contract contains an arbitration clause, there
is a presumption of arbitrability in the sense that an order to arbitrate the particular
grievance should not be denied unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that covers the asserted
dispute.” AT&T Techs., Inc., 475 U.S. at 650, 106 S. Ct. at 1419 (brackets and
internal quotation marks omitted; alterations adopted). In short, doubts should be
resolved in favor of arbitration.
Id.
The presumption of arbitrability is
“particularly applicable” where an arbitration clause is broadly worded. Id.; see
Nextera Energy, 762 F.3d at 594 (“Where the arbitration clause is broad, we
presume arbitrability of disputes.”).
The presumption of arbitrability “applies when an ‘arbitration agreement is
ambiguous about whether it covers the dispute at hand.’” Dasher v. RBC Bank
(USA), 745 F.3d 1111, 1115 (11th Cir.), cert. denied, 135 S. Ct. 144 (2014)
(quoting Granite Rock Co., 561 U.S. at 301, 130 S. Ct. at 2858). Put differently,
the “federal policy favoring arbitration” does not “override[] the principle that a
court may submit to arbitration only those disputes that the parties have agreed to
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submit.” Granite Rock Co., 561 U.S. at 302, 130 S. Ct. at 2859 (ellipsis and
internal quotation marks omitted); Inetianbor v. Cashcall, Inc., 768 F.3d 1346,
1352-53 (11th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015).
IV.
The question before us is “whether FPL’s determination of ‘access rights’
falls within the arbitration provisions of IBEW and FPL’s collective bargaining
agreement.” IBEW, 580 F. App’x at 869. That question, in turn, depends on the
definition of “grievance” in the collective bargaining agreement, because only
grievances may be advanced to arbitration. Doc. 1–3, Art. IV, ¶ 27(a). The
agreement defines a “grievance” “as a violation of the terms of this Agreement or
any type of supervisory conduct which unjustly denies to any employee the
employee’s job or any benefit arising out of the employee’s job.” Id., ¶ 26.
FPL contends that the district court’s order compelling arbitration should be
reversed because the court applied the presumption of arbitrability without first
determining whether the grievance and arbitrations provisions were ambiguous.
And the provisions are not ambiguous, according to FPL, because the revocation of
Kohl’s access privileges does not fall within the plain and objective meaning of
“supervisory conduct,” given that David Bonthron, the FPL employee who
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revoked Kohl’s unescorted access, was not Kohl’s supervisor.2 FPL also argues
that the “robust, unequivocal public policy to safeguard the Nation’s nuclear
facilities” is consistent with the purportedly clear conclusion that the parties did
not include this particular dispute within the grievance and arbitration provisions.
A.
We first address whether the grievance and arbitration provisions are
ambiguous, so as to trigger the presumption of arbitrability. See Dasher, 745 F.3d
at 1115. We must interpret an arbitration agreement by construing the contract to
effectuate the intent of the parties, “as determined by the objective meaning of the
words used.” Inetianbor, 768 F.3d at 1353 (citation and internal quotation marks
omitted). “A contract term is ambiguous if reasonably susceptible to more than
one interpretation.” Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d 1354, 1360
(11th Cir. 1988).
Initially, we note that FPL makes no claim that the revocation of access
privileges does not or could not “unjustly den[y] to any employee the employee’s
job or any benefit arising out of the employee’s job.” See Doc. 1–3, Art. IV., ¶ 26.
And, because access privileges are necessary for an employee to work at a nuclear
facility, we find that their revocation arguably denies the employee his job and his
2
According to FPL, Bonthron was employed by FPL as the Access Authorization/Fitness
for Duty Program Manager. He was responsible for ensuring FPL’s compliance with the NRC’s
regulations regarding unescorted access privileges and related matters for all FPL executives and
employees.
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job benefits. For example, in this case, Kohl lost his job as a nuclear watch
engineer and suffered a loss of job duties and salary because of FPL’s revocation
of his access rights.
Rather, FPL’s challenge is limited to whether determinations of access
privileges are encompassed by the phrase “any type of supervisory conduct.” The
collective bargaining agreement does not define the term “supervisory conduct,”
or, for that matter, “supervisor.” FPL interprets “supervisory conduct” to exclude
actions from those who, like Bonthron, exercise authority over employees in the
interest of management but do not supervise employees’ job duties or
performance. 3 This may, in fact, be a reasonable interpretation. We do not need to
decide whether it is, however, because we conclude that the grievance and
arbitration provisions are reasonably susceptible to an interpretation that covers
FPL’s determination of access rights. 4
In interpreting a contract, we must read the words of the contract in the
context of the contract as a whole. Inetianbor, 768 F.3d at 1353. In this case, the
3
We infer this interpretation, we think fairly, from FPL’s briefing. FPL asserts that
Bonthron was not Kohl’s supervisor, but it never defines what it means by the term “supervisor”
or attempts to provide a more comprehensive interpretation of the provision.
4
We may affirm the district court’s order on any ground supported by the record, even if
that ground was not relied upon by the district court. Feliciano v. City of Miami Beach, 707 F.3d
1244, 1252-53 (11th Cir. 2013). Thus, even if the district court failed to determine whether the
agreement was ambiguous, as FPL contends, we nonetheless can reach and decide this question
of law in the first instance. See Peterson v. Lexington Ins. Co., 753 F.2d 1016, 1018 (11th Cir.
1985) (contractual ambiguity is a question of law).
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context is that of a collective bargaining agreement governing relations between
labor and management. “A collective bargaining agreement is an effort to erect a
system of industrial self-government[,]” and “the grievance machinery under a
collective bargaining agreement is at the very heart of the system of industrial selfgovernment.” Warrior & Gulf Navigation Co., 363 U.S. at 580-81, 80 S. Ct. at
1351-52. In essence, “[c]ollective bargaining agreements regulate or restrict the
exercise of management functions.” Warrior & Gulf Navigation Co., 363 U.S. at
583, 80 S. Ct. at 1353.
Viewed against this backdrop, we think it is reasonable to construe the
phrase “supervisory conduct” broadly as referring to conduct under management’s
authority and in its interest that takes away an employee’s job or job benefit, or, as
the district court succinctly put it, “any conduct by FPL that takes a job benefit
away from an employee” See 29 U.S.C. § 152(11) (defining a “supervisor” under
the National Labor Relations Act as an individual who has authority “in the interest
of the employer” to take or recommend certain actions with respect to employees);
cf. Beasley v. Food Fair of N. Carolina, Inc., 416 U.S. 653, 658-60, 94 S. Ct. 2023,
2026-27 (1974) (explaining that “supervisors” were excluded from collective
bargaining because they were considered part of “management obliged to be loyal
to their employer’s interests”). The collective bargaining agreement’s use of broad
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language to define a grievance—“any type of supervisory conduct”—likewise may
suggest that the provision was not intended to be construed narrowly.
Whether or not Bonthron supervised Kohl’s work, it is undisputed that
Bonthron had authority, in the interest of FPL, to make nuclear-access
determinations for FPL employees, including Kohl. See Black’s Law Dictionary
1667 (10th ed. 2014) (defining a “supervisor” as “[o]ne having authority over
others; a manager or overseer”) 5; FPL’s Initial Br. at 30 (stating that Bonthron’s
duties were “to assist in managing” Turkey Point by making access
determinations); see also IBEW, 580 F. App’x at 869 (characterizing the issue in
this appeal as “FPL’s determination of ‘access rights’” (emphasis added)). In
making these determinations, FPL “monitor[ed],” “evaluat[ed],” “investigat[ed],”
and
“observ[ed]”
employees—all
terms
consistent
with
oversight
and
supervision—to determine whether they are and continue to be “trustworthy and
reliable” so as to comply with NRC regulations. FPL’s Initial Br. at 14.
As explained above, FPL’s access decisions can have significant
employment consequences for employees. Thus, despite the fact that Bonthron
may not have been Kohl’s supervisor in a traditional sense or that access decisions
do not arise out of that type of relationship, we think the phrase “any type of
5
“To ascertain ordinary meaning, courts often turn to dictionary definitions for
guidance.” United States v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009).
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supervisory conduct” is reasonably susceptible of an interpretation that
encompasses FPL’s nuclear-access determinations.
In sum, the grievance and arbitration provisions are ambiguous because they
are reasonably susceptible of an interpretation that covers FPL’s determinations of
access rights. See Orkin Exterminating Co., Inc., 849 F.2d at 1360. Therefore,
even assuming that FPL’s interpretation of the grievance and arbitration provisions
is also reasonable, we apply the presumption of arbitrability. See Granite Rock
Co., 561 U.S. at 302, 130 S. Ct. at 2858 (stating that the presumption applies where
there is “a validly formed and enforceable arbitration agreement [that] is
ambiguous about whether it covers the dispute at hand”).
B.
We adhere to the presumption of arbitrability and resolve any doubts in
favor of ordering arbitration unless the presumption is rebutted. Id., 130 S. Ct. at
2858-59. To rebut the presumption in the face of a broadly worded arbitration
provision, the party opposing arbitration generally must show either an “express
provision excluding a particular grievance from arbitration” or, in its absence,
“only the most forceful evidence of a purpose to exclude the claim from
arbitration.” AT&T, 475 U.S. at 650, 106 S. Ct. at 1419 (quoting Warrior & Gulf,
363 U.S. at 584-85, 80 S. Ct. at 1354).
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Here, FPL points to no express exclusion in the collective bargaining
agreement. The agreement does not expressly commit unescorted-access decisions
either to arbitration or to management’s sole discretion. FPL suggests that we can
infer a purpose to exclude access decisions based on the “strong public policy to
safeguard nuclear facilities,” and it also cites a general provision in the collective
bargaining agreement vesting management of the properties of the company
exclusively in FPL. However, the exclusion clause is vague, not express, and
inferring a purpose to exclude based on public-policy grounds goes beyond our
threshold inquiry of arbitrability and improperly encroaches on the merits of the
dispute. See Warrior & Gulf Navigation Co., 363 U.S. at 584-85, 80 S. Ct. at
1354; see also NextEra Energy, 762 F.3d at 596; IBEW, 580 F. App’x at 869. FPL
puts forth no other “forceful evidence” or legal argument in satisfaction of its
burden.
In short, FPL has provided no “positive assurance” that the arbitration clause
does not cover this dispute. See AT&T Techs, Inc., 475 U.S. at 650, 106 S. Ct. at
1419. Applying the presumption of arbitrability, we resolve any doubts about the
scope of the grievance and arbitration provisions in favor of coverage, and find,
therefore, that the dispute is arbitrable as a threshold matter. To be clear, we do
not hold that the arbitrator may, in fact, review FPL’s revocation of Kohl’s
unescorted-access privileges, and, as we indicated in our previous opinion, that
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question may now be moot. IBEW, 580 F. App’x at 869. We express no opinion
on these matters. See NextEra Energy, 762 F.3d at 596. But, as we also indicated
in our previous opinion, IBEW’s request for Kohl to be reinstated to his previous
position and to receive backpay is not moot. Id.
V.
In sum, the grievance and arbitration provisions in the parties’ collective
bargaining agreement are reasonably susceptible of an interpretation that covers
FPL’s determination of access rights. Thus, the agreement is ambiguous, and the
presumption of arbitrability applies.
Because FPL has not rebutted the
presumption, any doubts are resolved in favor of coverage. Consequently, we
affirm the district court’s order compelling arbitration.
AFFIRMED.
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