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
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