Houston Refining LP v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al

Filing 65

FINDINGS OF FACT AND CONCLUSIONS OF LAW (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
January 22, 2016

IN THE UN~TED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

HOUSTON REFINING LP,

David J. Bradley, Clerk

§
§

Plaintiff,

§
§
§
§

v.

UNITED STEEL, PAPER AND
§
FORESTRY, RUBBER, MANUFACTURING,§
ENERGY, ALLIED INDUSTRIAL AND
§
SERVICE WORKERS INTERNATIONAL
§
UNION, et al.,
§

CIVIL ACTION NO. H-12-2416

§

Defendants.

§

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case was tried to the court on January 11, 2016.
considering the Joint Pretrial Order

(Docket Entry No.

After

51),

Joint Proposed Findings of Fact and Conclusions of Law

the

(Docket

Entry No. 60), the evidence at trial, and the parties' arguments,
the court makes the following findings of fact and conclusions of
law pursuant to Federal Rule of Civil Procedure 52(a) (1).
FINDINGS OF FACT
Relationship of the Parties
1.

Plaintiff

Houston

Refining,

L.P.

("the

Company"

or

"Houston Refining") operates a refinery in Houston, Texas.
2.

Houston Refining, L.P. is a wholly-owned subsidiary of

LyondellBasell Industries, N.V.

3.

Defendant

Manufacturing,

United

Energy,

Steel,

Allied

Paper

and

Industrial

Forestry,

and

Rubber,

Service

Workers

International Union ("USW") is a labor organization as defined in
§

2 (5)

of the National Labor Relations Act

("NLRA"),

29 U.S.C.

("Local 13 227")

is also a

§152(5).
4.

Defendant USW Local 13 227

labor organization as defined by the NLRA.
5.

Defendants

USW

and

Local

13

227

(collectively,

the

"Union") are, and at all times relevant to this case have been, the
exclusive

representative

of

hourly

paid

employees

at

Houston

Refining with the exception of clerical and technical employees and
any

hourly

employees.
and

paid

executive,

administrative,

and

professional

Unless otherwise specified in these Findings of Fact

Conclusions

of

Law,

references

to

"employees"

mean

those

individuals employed at Houston Refining who are represented by the
Union.
Collective Bargaining Between the Parties and the Presumed 2009
Collective Bargaining Agreement ("CBA"}

6.

Houston Refining collectively bargains with the Union

over wages, hours, and terms and conditions of employment for the
Company's employees.
7.

Terms agreed to in negotiations have been set forth in

CBAs that typically have a three-year term.
8.

The CBA that immediately preceded the events giving rise

to this case began on February 1, 2006, and was set to expire at
-2-

midnight on January 31,

2009

(the "2006 CBA").

(Company Ex. 1)

The parties agree that timely notice was given of intent to cancel
the 2006 CBA in accordance with§ 8(d) of the NLRA.
9.

In mid-December of 2008 the Union and Houston Refining

met to discuss plans for negotiating their next labor contract.
10.

Formal negotiations began in early January 2009.

11.

Each party designated a negotiation team, with Joe Wilson

of the USW serving as lead negotiator for the Union and William
("Bill") Teufel as lead negotiator for the Company.
12.

The parties could not reach an agreement for the next CBA

by the midnight January 31, 2009, expiration date of the 2006 CBA.
13.
24-hour

The Union proposed
extension

that

agreement

to

the parties
extend

the

enter a
2006

rolling

CBA

while

negotiations continued.
14.

Houston Refining accepted this proposal and the Union

drafted a rolling 24-hour extension.
15.

On January 31, 2009, the Union and the Company signed the

extension agreement

("rolling 24-hour extension")

extending the

2006 CBA "on a day-to-day basis subject to a 24-hour notice of
canceling the extension."
16.

The

rolling

(Company Ex. 8)

24-hour

extension

did

not

require

any

particular form of notice to cancel it, only a 24-hour notice.
17.
continued

With the rolling 24-hour extension in place negotiations
into

February

of

2009;

-3-

and

the

parties

reached

a

tentative Memorandum of Agreement

( "MOA")

on February 12,

2009.

(Union Ex. 3)
18.

A condition to the MOA going into effect was ratification

by the Union members employed at Houston Refining.
19.

The MOA was signed by the Company, the Local Union, and

International Union representative Joe Wilson.
20.

(Union Ex. 3)

The credible evidence establishes that in discussions

about the MOA Joe Wilson told Bill Teufel that the rolling 24-hour
extension would terminate when the membership ratified the MOA.
21.

On February 19, 2009, Union members voted to ratify the

22.

Joe Wilson notified Bill Teufel that the members had

MOA.

ratified the MOA.
23.
rolling

Upon ratification of the MOA on February 19, 2009, the
24-hour

extension

terminated

and

the

parties

acted

according to the newly ratified MOA, which became the presumed new
collective bargaining agreement (the "presumed 2009 CBA").
24.
the

Within days after ratification of the presumed 2009 CBA,

Company

began

making

changes

to

terms

and

conditions

of

employment of the Union members consistent with the presumed 2009
CBA and differing from the 2006 CBA.
25.

(Company Exs. 16, 17, 19)

The parties ceased operating under the provisions of the

rolling 24-hour extension.
26.

The

Union

participated

and

fully

cooperated

in

the

implementation of the new terms and conditions of the presumed 2009
-4-

CBA and did not object

to,

or grieve,

the

changes.

(Company

Exs. 21, 22)
27.

After February 19, 2009, the parties operated under the

provisions

of

the

presumed

2009

CBA,

which

they believed had

replaced the 2006 CBA.
Houston Refining's 401(k) Plan

28.

Article 40 of the 2006 CBA addresses employee benefits.

(Company Ex. 1, page HR0.000055)
29.

The

401K And

Savings

Plan

For

Represented

Employees

("401(k) Plan") is one of several employee benefit plans identified
in Article 40 of the 2006 CBA.
30.

(Company Ex. 1, page HR0.000061)

Details concerning the various benefit plans referenced

in the 2006

CBA,

including the

401 (k)

Plan,

are

set

forth

in

separate plan documents in accordance with the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C.
31.

The 401 (k)

Plan was

§

1001 et seg.

implemented by Houston Refining,

without negotiation with the Union,

on July 1,

1995.

(Company

Ex. 4, page HR0.000200)
32.

The 40l(k) Plan is a typical employee retirement benefit

plan enabling employees to make pre-tax and post-tax contributions
to

a

fund

administered

in

accordance

with

federal

law

and

regulations.
33.

The funds of the 401(k) Plan are invested in a variety of

products such as mutual funds, treasuries, money market funds, and
-5-

bond funds,

selected from a menu of investment choices by each

employee-participant.
34.

Maximum annual contribution amounts are prescribed in the

Internal Revenue Code and penalties apply to withdrawal of funds by
participating employees before reaching age 59.5.
35.

The governing plan document, as well as the summary plan

description provided to all employee participants in the 401(k)
Plan,

states that Houston Refining can unilaterally change the

terms of the 401(k) Plan at any time.
36.

Houston Refining unilaterally made several changes to

terms of the 401(k) Plan since 1995.
37.

(Id., page HR0.000250.)

(Company Exs. 2, 3, 33)

The language of Article 40 of the 2006 CBA, the CBA that

USW now contends existed when it filed Grievance No. 0-12-09 (the
"Grievance") that gave rise to this action states:
During the term of this Agreement, [Houston Refining]
will provide advance notice of proposed changes to the
benefit plans covered by the Agreement.
[Houston
Refining] will meet with the Union for the purpose of
explaining and discussing the proposed changes.
A reasonable time period will be provided for the Union
to elect inclusion in or exclusion from the amended
benefits plan.
If
the
Union elects
exclusion,
represented employees shall continue participation in the
existing, unchanged benefits plan for the term of the
Collective Bargaining Agreement.
(Company Ex.

1,

HR0.000062-000063)

The above language remained

unchanged in the presumed 2009 CBA and each successor CBA.
38.

Houston Refining amended and restated the 401(k) Plan on

December 15, 2008.

(Company Ex. 4, page HR0.000193)
-6-

39.

Neither the Company nor the Union made any proposals

concerning the 401(k)

Plan during the negotiations for the 2009

CBA, but at the first negotiations meeting the Company stated that
it might make such a proposal.
The LyondellBasell Bankruptcy and 401{k} Match Suspension

40.

On January 6,

2009, Lyondell Chemical Company and some

affiliated business entities, including Houston Refining, filed for
bankruptcy protection.
Case No.

09 10023

In re Lyondell Chemical Company, et al.,

(REG),

United States Bankruptcy Court for the

Southern District of New York (the "Lyondell Bankruptcy")
41.

On March 6,

2009,

Houston Refining notified the Union

that because of the Company's recent Bankruptcy filing and the
resultant need to conserve cash, the Company had decided to suspend
matches to employee contributions to its 401(k) Plan beginning with
the May payroll.
42.

(Company Ex. 20)

Houston Refining's

suspension of

the matching 401 (k)

contributions was consistent with all of the other LyondellBasell
companies that filed for bankruptcy.
43.

(Company Ex. 6; Union Ex. 4)

Before May of 2009 Houston Refining matched the elective

deferrals made by employees under the salary reduction agreement in
the 401(k) Plan.
44.

This was a dollar-for-dollar match up to a maximum of 8%

of the participating employee's base wages; thus, for example, if
an employee whose base annual wages were $70,000.00 contributed the
-7-

full amount allowed by law to her 401(k) account, Houston Refining
would contribute an equal amount not to exceed $5,600.00.
45.

Funds deposited as matching contributions by the Company

are not correlated to hours of work or productivity.

Further, job

assignments and employment status of employees are not related to
or affected by 40l(k) matching contributions made by the Company.
46.
employees'

The

matching

contributions

individual 401(k)

are

accounts,

deposited

into

the

but are not paid to the

employee, nor are they available to the employee without penalty
until reaching retirement age as defined in the Internal Revenue
Code.
47.

Matching

contributions

are

not

taxable

income

to

employees and there is no payroll withholding from the matching
contributions at the time they are made, but the elected deferrals
and matching contributions are taxed upon withdrawal.
48.

Neither federal nor state law requires that any employer

make 401(k) contributions on an employee's behalf.

Further, there

are no state or federal laws related to compensation of employees
that

include

matching

contributions

made

by

an

employer

in

calculations of "regular rate of pay," "overtime," "minimum wage,"
or any other wage related calculations.
The Dispute Nullifying the 2009 CBA and Subseguent Proceedings

49.
that

it

In March of 2009, after the Company informed the Union
would

suspend

the

401(k)
-8-

match,

the

parties

began

discussing

whether

or

not

a

2001

letter

agreement

("LOA")

prohibiting strikes, lockouts, and other work slowdowns during the
life of the CBAs, was supposed to be included in the 2009 CBA, with
the Union taking the position that the LOA was not to be included.
50.

Houston Refining disagreed and directed the Union to a

February 5, 2009, side agreement between the parties that clearly
stated all LOAs and similar agreements would remain in effect with
the new contract.
51.

(Company Ex. 10)

On May 11,

Houston Refining.

2009,

the Union submitted the Grievance to

(Company Ex. 23)

When the Grievance was filed

by the Union, both the Union and Houston Refining believed that the
presumed 2009 CBA was in effect.
52.

A grievance under the 2006 CBA is defined by Article 30

to be "any difference regarding wages, hours or working conditions
between the parties .
Ex.

. covered by this Agreement."

(Company

1, page HR0.000049)
53.

Set forth immediately below is a

reproduction of the

language in the Grievance as it appears in the document, Company
Ex.

23:
Nature of Grievance
The Union charges Lyondeii-Houston Refiners LP with a specific violation
of the Article{s) 40, Section 6.3 & 6.4 & the "No Retrogression" LOA from
NOBP and any other provisions of the agreement that may be found to
apply.
State what happened:
On May7, 2009, the Company unilateral terminated of the 401 (k) match for
represented employees. This is a violation of the following CBA language:

-9-

6.4.
During the term of this Agreement, the Company will provide
advance notice of proposed changes to the benefit plans covered by the
Agreement.
6.4.1.
The Company will meet with the Union for the
purpose of explaining and discussing the proposed changes.
6.4.2.
A reasonable time period will be provided for the
Union to elect inclusion in or exclusion from the amended
benefits plan.
6.4~3.
lfthe Union elects exclusion, represented employees
shall continue participation in the existing, unchanged
benefits plan for the term of the Collective Bargaining
Agreement.
plus the "No Retrogression" LOAs that were extended with each term of
the Collective Bargaining Agreement since 1993 with tho following
language:
February 9, 1993
No Retrogression: The Company agrees that there shall be
no retrogression in previous terms and conditions, including
but not limited to agreements on no layoffs, rate retention,
plant closure, health and safety clauses, pension review and
health and safety review.

54.

The section references in the Grievance are identical to

the section references in the presumed 2009 CBA.
Grievance

alleges

a

"specific violation of

Section[s] 6.3 & 6.4
numbered

in

this

II

manner;

the

For example, the

the Article (s)

40,

The presumed 2009 CBA has sections
2006

CBA does

not.

The

quoted

language from the presumed 2009 CBA is identical to the Article 40
language in the 2006 CBA but with different section numbers.
trial,

Houston

Refining

agreed

that

quoting

the

text

of

At
the

presumed 2009 CBA did not affect the validity of the Grievance,
i.e., that the wording of the Grievance did not invalidate it.
55.

On May 13,

2009,

Joe Wilson wrote Houston Refining to

advise that the International Union's officers refused to sign the
-10-

presumed 2009 CBA, even though Wilson previously signed off on the
February 12,
Union.

2009,

MOA as a representative of the International

(Union Ex. 5)

56.

That same day the Union filed Charge No.

16-CA-26791,

alleging to the National Labor Relations Board ("NLRB") Region 16
that Houston Refining violated section 8(a) (5) of the NLRA when it
suspended 401 (k) matching contributions.

(Company Ex. 25)

Houston

Refining rejected the Grievance, asserting that it did "not raise
any grievable issue under the Collective Bargaining Agreement."
(Company Ex. 26)
add Houston

The Union amended this charge on June 2, 2009, to

Refining's

refusal

to process

separate violation of § 8 (a) ( 5) .
57.

On

June

12,

2009,

the

Grievance

as

a

(Company Ex. 27)
Houston

Refining

filed

Charge

No. 16-CB-07895 with Region 16 of the NLRB, alleging that the Union
violated§ 8(b) (3) of the NLRA by refusing to execute the presumed
2009 CBA.
58.
dismissed
complaint.

(Company Ex. 28)
On July 31,
Houston

2009,

the Regional Director of

Refining's

(Company Ex. 29)

charge

by

declining

to

the NLRB
issue

a

Houston Refining appealed that deci-

sion to the NLRB Office of the General Counsel in Washington, D.C.
59.
Counsel

On October 30,
denied

No. 16-CB-07895.
60.

the

2009,

the NLRB Office of

Company's

appeal

the General

regarding

Charge

(Company Exs. 35, 36)

The General Counsel determined that there was no meeting

of the minds regarding the presumed 2009 CBA because an agreement
-11-

had not

been reached

terms."

(Company Ex. 35)

61.

on

"all

substantive

issues

and material

The term in dispute as determined by the General Counsel

was the no strike/no lockout/no slowdowns provision.
62.

On November 13, 2009, the Union filed a Complaint in the

Lyondell Bankruptcy proceeding in the Southern District of New York
seeking to compel Houston Refining to arbitrate the 401(k) dispute.
(Company Ex. 37)
63.

The Union represented to the Bankruptcy Court that the

"2009 agreement is currently in effect," and articulated the 2009
CBA as the basis for compelling Houston Refining to arbitrate the
401(k) dispute.
64.

This

(Id., page HR0.000655.)
representation

was

consistent

with

other

representations by the Union regarding the "effective" nature of
the 2009 CBA,

including an August 31,

2009,

letter to Terrence

Martin, in which Joe Wilson confirmed Martin's characterization of
the 2009 CBA as "effective."
65.

On November 18,

(Company Ex. 31)

2009,

the NLRB dismissed the Union's

Charge (i.e., Charge No. 16-CA-26791).
66.

The NLRB' s

(Company Ex. 39)

reasoning behind dismissal of

the Union's

Charge was contained in an Advice Memorandum from the NLRB Division
of

Advice

dated November

9,

2009,

and

Refining's counsel on November 18, 2009.

-12-

transmitted

to

(Company Ex. 38)

Houston

67.
its

Specifically, the NLRB determined that the Union waived

right

to

suspension.
68.

request

bargaining over Houston Refining's

match

(Id., page HR0.000641.)

The NLRB also noted that

"since the parties had not

reached a meeting of the minds on a successor agreement when the
Employer suspended benefits, there was no contract modification
and it is immaterial whether the Employer had a

'sound arguable

basis' under the expired contract for its action."
69.

(Id. atn.l.)

Throughout the NLRB proceedings the Union did not allege

that the 2006 CBA could serve as a contractual duty to arbitrate
because of the rolling 24-hour extension.

The Union's charge was

based on alleged unilateral change to and refusal to process the
grievance under the presumed 2009 CBA that the parties believed was
in effect.
70.
in

the

In its December 18, 2009, answer to the Union's complaint
bankruptcy

litigation,

relying

on

the

determination that the 2009 CBA never existed,

NLRB' s

previous

Houston Refining

raised the non-existence of the 2009 CBA as the reason it did not
have

to arbitrate

the

401(k)

dispute.

(Company Ex .

40,

page

HR0.001144)
71.

On January 20,

2010,

presumed 2009 CBA was not
bargaining agreement
CBA") .

that

(Company Ex. 45)

the parties, recognizing that the

in place,

executed a

expired January

31,

new collective
2012

The 2010 CBA states that

-13-

("the

2010

[a]ctions taken by the company and union to implement the
terms
of
the
original
tentative agreement dated
February 12, 2009 (such as, POS/PPO, Machinist/Refinery
Mechanics) prior to the signing of this letter will
remain unchanged. The Parties, however, agree that this
provision does not in any way make the collective
bargaining agreement effective on any date earlier than
the date which it is signed by the Union.
( Id.)

72.

On February 20, 2010, the Union informed the Company that

it intended to amend its Complaint in the Bankruptcy Court to
include

an

alternative

allegation

that

the

Company

had

an

obligation under the 2006 CBA to arbitrate the Grievance based on
its

contention

that

24-hour extension.
73.

The

neither

party

had

cancelled

that

rolling

(Union Ex. 6)

Company

refused

to

consent

to

the

requested

amendment.
74.

On April 23,

2010,

in a Motion for Leave to Amend its

Complaint, the Union argued that the rolling 24-hour extension was
never cancelled as

an alternative

to

the

2009

CBA.

(Company

Ex . 4 6 , page 3 )
75.

Leave

to

amend

the

Complaint

Bankruptcy Court on September 13, 2010.
76.

At

ultimately

the

urging

resolved

the

of

the

was

defenses.

-14-

Judge,

Bankruptcy Court

agreeing to arbitrate the dispute,

by

the

(Union Ex. 7)

Bankruptcy

Union's

granted

the

parties

Complaint

by

preserving all arguments and

Labor Arbitration and the Instant Lawsuit

77.
Grievance

Following the settlement in the Bankruptcy Court,
was

heard

by

Arbitrator

Charles

Griffin,

the
on

February 23-24, 2012.
78.

On June 15, 2012, the Arbitrator issued an Opinion and

Award sustaining the Union's Grievance.
79.

On August 10,

2012,

(Union Ex. 8)

the Company filed suit to vacate

Arbitrator Griffin's Award in its entirety.
80.

(Docket No. 1)

By Memorandum Opinion and Order (Docket No. 20) entered

on June 14, 2013, this Court denied Houston Refining's Motion for
Summary Judgment and granted in part and denied in part the Union's
Motion for Summary Judgment.
81.

Houston Refining filed a timely Notice of Appeal (Docket

No. 23) on July 12, 2013.
82.

By Order on August 6,

2013

(Docket No.

29),

the Court

stayed remand to Arbitrator Griffin pending appeal to the Fifth
Circuit.
83.

On August 25, 2014,

the Fifth Circuit remanded to this

Court for further proceedings to determine if the Union's Grievance
over Houston Refining's suspension of 401(k) matching contributions
was arbitrable.
United Steel,

See Docket Entry No. 32, Houston Refining, L.P. v.
Paper & Forestry,

Rubber,

Manufacturing,

Energy,

Allied Industrial & Service Workers International Union, 765 F.3d
396,

410

(5th

Cir.

2014).

The

-15-

Fifth

Circuit

explained

that

resolving this issue would be fact intensive, and would require the
court to address three issues:
(1)

"[W] hether the 2006 CBA existed
filed its grievance." Id.

(2)

Whether even if the 2006 CBA existed, the grievance
was "invalid under the 2006 CBA's arbitration
clause" because it quoted the text of the presumed
2009 CBA.
Id. at 411.

( 3)

the
Whether even if
the
2006
CBA existed,
4 0 1 ( k)
Plan ,
"unilateral
suspension
of
the
allegedly in violation of Article 40 of the 2006
CBA, does not concern wages withing the meaning of
the CBA's arbitration clause." Id.

The

Fifth

decided,
decision."
84.
no

longer

Circuit

instructed

"'independently,'

without

that

when

these

deference

the Union

issues
to

must

the

be

arbitral

Id. at 411.
As explained in Finding of Fact 54, the second issue is
in dispute

because

the

Company now agrees

that

the

wording of the Grievance did not affect its validity.
CONCLUSIONS OF LAW

1.

The court has personal jurisdiction over the parties, all

of whom are either residents within the Southern District of Texas,
Houston Division,

or exceed the

level of minimal

contacts

for

exercise of personal jurisdiction in Harris County, Texas.
2.

The court has subject matter jurisdiction under section

301(a) of the Labor Management Relations Act, 29 U.S.C.

§

185(a).

See Textron Lycoming Reciprocating Engine Division, AVCO Corp. v.
United Automobile, Aerospace & Agricultural Implement Workers of
-16-

America,

International

(allegation of

labor

Union,

118

contract

S.

Ct.

violation

1626,

1629

(1998)

to

support

sufficient

subject matter jurisdiction under Section 301(a)).
3.

Whether an agreement to arbitrate exists,

on which a

claim of breach can arise, is a question of law for the Court to
decide.

See Rochdale Village,

Inc. v.

Public Service Employees

Union, Local No. 80, 605 F.2d 1290, 1294 (2d Cir. 1979).
4.
the

The party asserting arbitrability, here the Union, bears

burden of

proving

that

an agreement

to

arbitrate

exists.

Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002).
5.

There is no obligation to arbitrate absent a written

agreement, executed by the parties, that requires arbitration of
the particular matter.
111

s.

Ct.

2215

I

2225

Litton Financial Printing Division v. NLRB,
(1991) .

See AT&T Technologies,

Communications Workers of America,

106 S.

Ct.

1415,

1418

Inc.

v.

(1986)

("' [A] rbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit.'")

(quoting United Steelworkers of America v.

Warrior & Gulf Navigation Co., 80S. Ct. 1347, 1353 (1960)).
6.

"[W] here the contract contains an arbitration clause,

there is a presumption of arbitrability."
S. Ct. at 1419.
the

question of

AT&T Technologies, 106

The presumption in favor of arbitration applies to
whether a

particular dispute

falls

within an

existing agreement's scope, but not to the threshold question as to
the existence of an agreement between the parties to arbitrate.
-17-

Sherer v. Green Tree Servicing LLC,
2008)

(per

curiam) .
Houston

coverage."
Forestry,

"Doubts
Refining,

Rubber,

548 F.3d 379,

should be
L.P.

Manufacturing,

resolved
United

Energy,

Service Workers International Union,
2014)

v.

381

(5th Cir.

in

favor

Steel,

of
&

Industrial

Allied

Paper

&

765 F.3d 396, 412

(5th Cir.

(quoting AT&T Technologies, 106 S. Ct. at 1419).
7.

Although there is a presumption of arbitrability when the

contract contains an arbitration clause,

if it can be said with

positive assurance that the arbitration clause is not susceptible
of

an

interpretation

that

presumption does not apply.
8.
can

only

covers

the

asserted

dispute,

Id.

Even where there is an agreement to arbitrate, a court
compel

specifically

arbitration

agreed

to

of

a

matter

arbitrate.

that

PoolRe

the

Ins.

Organizational Strategies, Inc., 783 F.3d 256, 266 (5th
(citing Safer v. Nelson Financial Group,
(5th Cir. 2005)
(1)

the

parties

Corp.

v.

Cir. 2015)

Inc., 422 F.3d 289, 293

("In order to [compel arbitration] we must decide:

whether there is a valid agreement to arbitrate between the

parties; and (2) whether the dispute in question falls within the
scope of that arbitration agreement.")).
9.

Parties

to

a

collective

bargaining

agreement

articulate the manner in which it will be terminated.

See,

can
~'

New York News Inc. v. Newspaper Guild of New York, 927 F.2d 82, 84
(2d Cir. 1991)

(per curiam).

The parties to the rolling 24-hour

extension could therefore decide how to cancel it.
-18-

10.

Parties

to

a

collective

bargaining

communicate the termination of a contract,
simply by their behavior.

agreement

can

or its modification,

International Brotherhood of Electrical

Workers, Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1, 4
(lOth Cir.), cert. denied, 97 S. Ct. 94 (1976).
11.

Arbitration clauses in collective bargaining agreements

generally do not survive expiration of the collective bargaining
agreement.
12.

See,

~~

Reviewing

Litton Financial, 111 S. Ct. at 2225.

the

issue

of

arbitrability

independently,

without deference to Arbitrator Griffin, the court concludes that
the Union

failed

to

satisfy its

burden to prove

that

Houston

Refining and the Union were parties to an agreement requiring the
parties

to

arbitrate

matching contributions.

the

dispute

over

suspension

of

401 (k)

See AT&T Technologies, 106 S. Ct. at 1418

("[A] rbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit.").
13.

The presumed 2009 CBA cannot serve as the basis for the

Union's assertion of a duty to arbitrate the parties' dispute over
suspension of the 40l(k) matching contributions because "[t]he 2009
CBA never took effect.

"

(~,

Joint Pretrial Order, Docket

Entry No. 51, Admission of Fact 15 at p. 7)
14.

The 2006 CBA cannot serve as the basis for the Union's

assertion of a duty to arbitrate because the 2006 CBA expired on
February 19, 2009 (when the rolling 24-hour extension terminated),
-19-

before the Union filed Grievance No. 0-12-09 on May 11, 2009.
Findings of

Fact~~

20-27.

See,

~'

See

Firesheets v. A.G. Building

Specialists, Inc., 134 F. 3d 729, 731 (5th Cir. 1998)
Carpenters Amended & Restated Health Benefit

(per curiam);

Fund v.

Holleman

Construction Co., Inc., 751 F.2d 763, 767-70 (5th Cir. 1985).
15.

If, however, a higher court were to determine that the

rolling 24-hour extension of the 2006 CBA did not terminate before
the Union filed Grievance No. 0-12-09, the court concludes that the
subject matter of the Grievance is arbitrable under the arbitration
clause

of

the

2006

CBA,

which

difference regarding wages,

defines

hours,

a

"grievance"

as

"any

or working conditions."

The

issue before the court is whether the Grievance is arbitrable, and
this court's independent inquiry as to whether the Grievance is
arbitrable
is circumscribed by a presumption favoring arbitrability:
[W] here the contract contains an arbitration clause,
there is a presumption of arbitrability.
That
presumption applies unless it may be said with positive
assurance that the arbitration clause is not susceptible
of an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage.
Houston Refining,

765 F.3d at 412

S. Ct. at 1419).

See also id. at 413 ("The dissent's analysis of

the

2006

CBA says

nothing about

(citing AT&T Technologies, 106

whether

it may be

said with

positive assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute.").
16.
Relations

The term "wages" as used in§ 9(a) of the National Labor
Act,

29

u.s.c.

§

159 (a) ,

-20-

generally

encompasses

See Inland Steel Co., 77 NLRB 1,

contributions to pension plans.
4
S.

(1948), aff'd,
Ct.

887

(7th Cir. 1948), cert. denied,

170 F.2d 247

(1949)

69

("[W]e are convinced and find that the term

'wages' as used in Section 9(a)

[of the National Labor Relations

Act] must be construed to include emoluments of value, like pension
and insurance benefits which may accrue to employees out of their
employment relationship."); id. at 5 ("[T]he respondent's monetary
contribution

to

the

pension

plan

constitutes

enhancement of the employee's money wages.") .

an

economic

Houston Refining has

failed to cite any authority or to present any evidence of the
parties' negotiating history showing that the meaning of the term
"wages"

in the

2006

CBA' s

arbitration clause differs

from the

meaning of that term in§ 9(a) of the National Labor Relations Act,
29 U.S.C. § 159(a).

Therefore, the court cannot say with positive

assurance that the arbitration clause is not susceptible of an
interpretation that covers the subject of the Union's Grievance.
See AT&T Technologies, 106

s. Ct. at 1419 ("[W]here the contract

contains

clause,

an

arbitrability

arbitration
in

the

sense

that

there
' [a] n

is
order

a

presumption
to

of

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.
Doubts

should

be

resolved

in

favor

Warrior & Gulf, 80 S. Ct. at 1352-53).
765 F.3d at 415 n.40

of

coverage. '")

See also Houston Refining,

(quoting AT&T Technologies,
-21-

(quoting

106 S.

Ct.

at

1419) ("Regardless of what additional facts and legal arguments are
marshalled, Houston Refining cannot carry its burden of overcoming
the

presumption of

arbitrability

merely by advancing a

reasonable reading of the 2006 CBA.

Rather, it must invalidate the

Union's interpretation of the CBA's arbitration clause, such that
the CBA is not susceptible of an interpretation that covers the
asserted dispute.").
To

the

extent

that

any

Finding of

Fact

is

more

properly

characterized as a Conclusion of Law it is ADOPTED as such.

To the

extent that any Conclusion of Law is more properly characterized as
a Finding of Fact it is ADOPTED as such.
SIGNED at Houston, Texas, on this 22nd day of January, 2016.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-22-

~I