Suncor Energy (U.S.A.) Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International (USW) Union et al

Filing 25

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT. Plaintiff's 6 motion for summary judgment is denied and the defendants' 9 motion for summary judgment is granted. The Clerk shall enter judgment declaring that the arbitrability of the Parke r grievance is to be determined by the arbitrator and compelling the plaintiff to proceed with arbitration under the procedures ofthe CBA. The plaintiff's 21 motion to strike the Fennell declaration is granted, by Judge Richard P. Matsch on 7/12/2011.(rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-00375-RPM
SUNCOR ENERGY (U.S.A.) INC.,
Plaintiff,
v.
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO/CLC, and
USW LOCAL UNION 12-477,
Defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Suncor Energy (U.S.A.) Inc. (“Suncor” or “Company”), brought this
civil action against the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and
USW Local Union 12-477 (“Local 12-477”) (collectively, the “Union”), for declaratory
judgment that a grievance filed on behalf of employee Jeff Parker is not subject to
arbitration under the Collective Bargaining Agreement (“CBA”) between the parties. The
Union counterclaimed seeking a declaratory judgment of arbitrability and an order
compelling arbitration of the dispute. Both parties submitted motions for summary
judgment with attachments. The issue is whether the question of arbitrability is to be
decided by the arbitrator or this court. Because the underlying grievance depends upon
an interpretation of the meaning of two articles of the CBA, the Union’s motion is
granted.

Jeff Parker applied for a posted Shutdown Mechanical Coordinator Special
Assignment position in February, 2010. He was not selected because there was no
backup for his regular position as Reliability Technician responsible for the fire water
safety system at Suncor’s refinery in Commerce City, Colorado. A grievance was filed
claiming a violation of Article XXV, an anti-discrimination provision, reading as follows:
There shall be no discrimination of any kind against any employee by any
supervisor, manager, or other person in the employ of the Company or by
the Union, its agents, officers, representatives, or members.
The Company and the Union agree to follow a policy of non-discrimination
on the basis of race, color, religion, national origin, age, sex, handicap,
marital status, and the Vietnam Veteran Readjustment Act.
The plaintiff claims that under the management rights clause it has the right to
modify work assignments which is not subject to arbitration by its express terms. Article
XXIII provides that right and contains the following language:
The exercise of the responsibilities of the Company may be grieved, but
shall not be subject to arbitration or mediation provided that the exercise
of such rights, are not in violation of the express terms of this Agreement.
The issue is whether the Parker grievance is based on a violation of the terms of
Article XXV. In the initial grievance procedure Parker asserted that there was
discrimination against him because there was no backup for his position. In the answer
and counterclaim and in its summary judgment motion the Union claims discrimination
because of Parker’s union activities.
The plaintiff asks for a delay in deciding this case to permit discovery to show
that this is the first time such a claim was made. It also moved to strike a declaration of

2

Doug Fennell because of lack of personal knowledge of Parker’s grievance. That
motion is granted. The declaraton has no bearing on this Court’s analysis.
The merits of this dispute depend upon an interpretation of the language used in
these two articles of the CBA. The plaintiff contends that the anti-discrimination article
must be read to prohibit discrimination of the kind referred to in the express language of
the second paragraph while the Union emphasizes “no discrimination of any kind.” If
that reading is accepted, the question then is whether the discrimination asserted is “a
violation of the express terms of the agreement” and thus excepted from the exclusion
of arbitration in Article XXIII. These are questions of interpretation of the CBA subject to
arbitration under Section 4 of Article V of the CBA, reading as follows:
The only grievance which shall be arbitrable shall be those meeting the
following conditions:
a.

Grievances arising between the Union and the Company
relating only to the interpretation or performance of this
Agreement which cannot be adjusted by mutual agreement.

b.

The grievance specifically designates the express provision
or provisions of this Agreement alleged to have been
violated, and the manner in which it or they have been
violated.

The subsidiary procedural question of the sufficiency of the grievance filed for
Parker in meeting the requirement of paragraph b is also a matter of contract
interpretation to be decided by the arbitrator.
For these reasons, it is

3

ORDERED, that the plaintiff’s motion for summary judgment is denied and the
defendants’ motion for summary judgment is granted. The Clerk shall enter judgment
declaring that the arbitrability of the Parker grievance is to be determined by the
arbitrator and compelling the plaintiff to proceed with arbitration under the procedures of
the CBA. The plaintiff’s motion to strike the Fennell declaration is granted.
Dated:

July 12th , 2011
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

4