*1 proceedings and was not regulatory tain agencies to subject sec-

intended to state proceedings, employee protection

tion 703 scope permissible within the

even were that Therefore, regulatory action. dis- denying peti- action in Leber’s

trict court’s from the IBLA’s action

tion for review proceeding

dismissing his section 703

against DER not error. was supra, Leber pointed

As we out note opportu-

has had and availed himself claim

nity to have the merits of his evaluat- appropriate state and federal However, the route that he

authorities. not authorized

sought in this case was Therefore, we will affirm dis-

statute. judgment.

trict court’s

CHAUFFEURS, AND TEAMSTERS

HELPERS, LOCAL UNION

238, Appellant,

C.R.S.T., (sic), Appellee. INC.

No. 85-1301. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted 1985.

Decided Dec.

Rehearing En Banc Granted 21, 1986.

March

contract’s terms. In December CRST notified its employees that impasse an had been reached and that it was unilaterally implementing a schedule of hours and other terms and conditions ment consistent with its final offer to the Union, effective December 1982. The schedule contained no express grievance procedure. However, the pro- schedule did vide:

Section 2. Seniority List ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] any employee’s to seniority Protest date position or on the list must be made in writing to the thirty within days seniority calendar such date appears, position pro- or first if no Iowa, Barriek, Moines, for Neil A. Des made, are timely posi- tests the dates and appellant. posted tions shall be deemed correct. Iowa, Ronchar, Rapids, Robert E. Cedar protest such Any timely which is made appellee. for grievance proce- to submitted (our emphasis) dure. LAY, HENLEY, Judge, Before Chief July 1983, Jerry Ottaway, In a truck WOLLMAN, Judge Senior Circuit Cir- driver, discharged was following CRST Judge. cuit for accident which CRST determined he LAY, Judge. Chief responsible. was He Chauffeurs, Helpers, Teamsters and Lo- ance, contending that he was (Union) brought cal Union 238 suit in Iowa just attempted cause. The Union seeking state district court com- order arbitration, pursue fol- CRST, pelling (CRST) Inc. submit grievance procedure lowing prescribed CRST, by Jerry Ottaway, filed expired agreement. in the refused CRST member, proce- and Union to arbitrate the dures in an expired set out bar- had agreed that it to be bound gaining agreement. jurisdiction Federal grievance or procedure pursuant over this exists to section provided its as unilateral schedule 301(a) Management of the Labor Relations seniority purposes. The Union asserts Act, 185(a) (1947). Upon re- U.S.C. § grievance procedure that the existence of pursuant moval to federal court to 28 may be inferred because CRST’s unilateral (1976), sum- U.S.C. 1441 CRST moved for § seniority for resolving schedule allowed mary judgment, which the district court1 disputes through “the granted. appeals. The Union We reverse dure.” Without the existence of some sort direct district court to enter an grievance process, language this would requiring order CRST to submit the Moreover, superfluous. as grievance procedure. by parties, dure had been settled 1,1979 From July through 30,1982, June alleges Union employed truck drivers under a col- remains in force. The lective argues also existence of a Union. The entered into can be inferred be- negotiations prior to expira- represented the contract’s cause CRST the unilateral agree but were unable on the new was final consistent McManus, of Iowa. Senior District Edward J. 1. The Honorable Judge for the Northern District United States grievance procedure offer that a was a America, AFL-CIO, Joiners part of this last offer. Cir.1983); Diamond Glass Corp. v. Glass Warehouse Workers and grant reviewing In a district court’s Paint Handlers Local Union applies this court summary judgment, (2d Cir.1982). 303-04 Although it is as same that used standard *3 impasse negotiations clear that once has Man granting the motion. district court reached, an right been has the States, 719 F.2d 965 del v. United unilaterally institute terms and conditions Cir.1983). judgment proper Summary is employment doing of and in so is not bound genuine of only there is issue when to those contained in the expired agree- may the decid material fact so that case ment, recognized courts also have that an law, appeal the ed as a of and on matter employer may act unilaterally after im- given of non-movant must be the benefit only if passe action is reasonably its com- inference every favorable that prehended preimpasse within its bargaining Fed.R.Civ.P. drawn from the evidence. proposals. United Steelworkers Amer- of 56(c); Tremayne, 747 F.2d Buford ica, AFL-CIO v. Fort Pitt Casting Steel (8th Cir.1984). It is also well settled 447 Division-Conval-Penn, Inc., 635 F.2d particular the labor that (3rd Cir.1980)(citing 1078 Cromp- NLRB v. is of the courts question a law for Mills, Inc., ton-Highland 337 U.S. 69 and to decide. Brotherhood Painters of 960, 93 (1949)). S.Ct. L.Ed. 1320 America, & Allied Trades Glaziers of policy Federal labor favors arbitra Local Union No. 558 Glass Workers Corp., resolving disputes Lord & Construction tion as the Burnham method (8th Cir.1983). The Un agreements related to collective presumption parties ion has no affidavits contradict there is that The ing provisions the facts as established CRST. intend arbitration to survive the by the from those expiration agreements inferences drawn of as to Nolde, arise contract. under a genuine do issue of facts not demonstrate 254-55, U.S. at 97 S.Ct 1073-74. Nolde fact, evidentiary instead illu material but an as to issue whether legal re minate the issues to be ultimate over severance was arbitrable after the court, there Though solved. the district expiration bargaining agree of a collective fore, properly proceeded to reach the case’s Supreme ment. Court found dis merits, is question us now before it pute arbitrable on the arose court in its reso whether the district erred contract. out of lution of the merits. Supreme further Court observed rule, general aAs is a creature of the collective bar contrary some indica- absence of gaining agreement a party cannot be strong there are reasons to conclude compelled to arbitrate matter did not intend their arbi- obligation of contractual do absence automatically tration duties to terminate Brothers, so. Nolde Inc. v. Local No. ter- contract. While Bakery Confectionary Un Workers collective-bargaining of mination ion, AFL-CIO, 243, 250, 430 U.S. change agreement works obvious 1067, 1071, (1977). An 51 L.Ed.2d em employer and relationship ployer may required not be to arbitrate a many impact little union would have that arises after the deci- behind their of considerations bargaining agreement of a collective when differ- sion to resolve their contractual complained the event does not occur through ences arbitration. before the termination of the contract nor Nolde, 253-54, U.S. at any rights arising relates to the ex under See, Despite pired agreement. e.g., employer’s recognized O’Connor unilaterally impasse, act after Carpenters Inc. v. it is Union No. 1408 of employment clear Carpenters equally relation- United Brotherhood & ships process. arise under a contract do not undisputed facts totally of separate from it in a vacuum the case at bar distinguishable exist are from circumstances cases which question void of other relevant but involve the contract’s termi- what terms continue even after and conditions survive an ex- pired bargaining agreement nation. Richardson v. Communication America, impasse. unilaterally imple- Workers CRST here Cir.1971), denied, 414 cert. mented a schedule of terms and conditions (1973). This “consistent with its final offer” in which CRST included a reference emphasized court Richardson that procedure” (our “the empha- the collective sis). here, then, At issue meaning is the rather, ordinary in a be drawn from CRST’s reference in its sense, agglomerates variety rights schedule to “the” pro- methodology relating *4 cedure. union, er, employees. and the ance addition job security. (1961) [sic], which which gaining Agreements, 57 Mich.L.Rev. 1 (1958). Note, 61 Column.L.Rev. 1363 [sic] ship Cox, The ardy tract does not ^[*******] ^[*] incentives to union pay, pension rights for an indefinite “subsisting” employs agreement. represents losing Legal recognizes ^[*] affect vacation place The his date of a Nature of Collective Bar- him, job employee, him, contractual relation- In fact one of the at the termination each seniority rights, ^[**] employee representation period contemplate pay, ^[*] the union company of time. expect- in sever- employer jeop- ^[**] con- in al union later filed a dure set forth in the draft continue terms and union AM-FM-TV The employer then sent a letter to the ally implement wages, hours, and other the Union due to the version gaining agreement remained unsigned by Cir.1971). In Taft, a draft collective bar- soning in mented In construing this unilaterally imple- imposition future advising term, that the handling grievances forth conditions of refused to in discharged after this unilater- we find instructive our rea- accordance that it intended to unilater- NLRB, Broadcasting in working claimed the draft. When the agreement, to it for execution. to arbitrate arises with the discrepancies conditions, F.2d 1382 that on behalf of Co., and would arose WDAF as set in in ancy not to during peri- be laid off slack only out of a contract and that no executed recognized ods of work. It has been that contract the employer and the un- many rights may of these survive the ion existed. This court disagreed, noting agreement. termination of the that the NLRB had found employer’s Richardson, agreement letter to (citations be interim 443 F.2d at 978-79 omitted). ambiguous regarding may reasonably argued It be were here, against to be construed that Otta- agreement. as the drafter of the way Taft, not “just F.2d at 1384. provided cause” as in the collective bar- gaining agreement, continuing is as much a district court its memorandum right vested under the contract as was the granting summary judgment order to severance in Nolde. recognize CRST did that CRST’s unilateral However, we need not decide wheth schedule could be seen constitute a con er the facts of Nolde are on all fours with tract between CRST and the Union. How controlling ever, this case and reaching here. We find an its conclusion that persuasive why more only grievable even reason Otta matters under the schedule way’s discharge should be seniority positions, are dates and the dis rejected ly the use principle procedures apply trict court failed contracts, for issues other than seniority. ar of labor As was judicial construction persuasive Nolde, parties’ ambiguities in con Taft, failure to ticulated exclude from against contract provisions are to be construed tract arising termination, drafter, far all reasonable doubts as from mani- festing an intent to have interpretation resolved in favor of the arbitration obli- 1384; gations cease with agreement, party. Taft, 441 F.2d at affords concluding basis for they intended to Royal Insurance Ross v. Globe cf. F.2d grievances arbitrate all possible arising out of (given relationship. Nolde, contractual conflicting interpretations of a contract adopt provision, the district court should par favors the in mind here

the construction which most should borne It part preparing the cont and arbitration ty who had no the exact while ract).2 by the Union procedures negotiations dif- during intent, Whatever CRST’s the schedule’s fered, grievance proce- the inclusion as to the submission of other issues silence itself never final contract was dure in the seniority to the besides Taft, As in questioned.3 ambiguous, and rendered the schedule dure interim operates as an schedule compels us to conclude that the procedure for the res- retaining a discharge preempt Ottaway’s from did terms and disputes regarding olution *5 procedure. being subject grievance to a think that employment. We conditions Controls, City Inc. v. Johnson Ce- Cf. where true in a situation especially is this 370, Iowa, Rapids, dar reached and the impasse has been Cir.1983) (court’s construing function in a set of unilaterally instituted has parties’ intent contract is to determine pur- working conditions hours and they and not from what from what is said “final offer.”4 with a portedly consistent say); meant see also Minot Builders the con- claims to Notwithstanding CRST’s v. Teamsters Local Supply Association intent at the CRST’s trary, we find that (8th Cir.1983) 123, 703 F.2d 327-28 the interim schedule implemented time it (discharge collective was arbitrable where using grievance continue was to explicit- did not state the same resolving disputes to dure for discharges subject are not ly that arbi- expired con- by the contemplated extent tration; regarding doubts tract. , coverage). in should be resolved favor of submit dis- duty analysis It seems clear from an of CRST’s thus created CRST grievance the interim procedure” arising reference to “the under putes conditions the unilateral schedule that CRST intended terms and regarding repre- by its procedure grievance to retain a its con- to a ment working implementing tinuing relationship with the Union and the that it was sentation its final offer to express- employees. The schedule nowhere consistent conditions stated, 2. This court has also “proposals by company in the context of spelled griev- out machinery ance interpreting "where one of the plan, included final the terms of an ERISA parties binding draws a contract and arbitration. union [The a dif- terms, vary procedure.] the other cannot grievance procedure the bur- ferent Neither drawing upon party den is the contract to was the same as that contained in the meaning plain." bargaining make the Landro Glenden- contract.” Inc., ning Motorways, previously (citations omitted). This court has noted that a ance or arbitration is a term or con- employment, 3. The record is replete Independent dition of NLRB v. with references to the Co., Division, Stave procedure proposals by advanced Industries Diversified (8th Cir.1979), denied, parties during negotiations. F.2d example, both cert. For August 100 S.Ct. the Pollard, affidavit of Lawrence B. (citing Broadcasting WDAF Director of Industrial Relations for AM-FM-TV NLRB, (8th Cir.1971)). during period question, 441 F.2d 1382 CRST states that supported by grievance procedure This conclusion the schedule’s the Union. expressly exclude from applied only failure to seniority disputes.6 CRST’s clause procedure all scope construction, urged Our on this court seniority. conclusion is except Our issues Union, does interfere with CRST’s Supreme Court’s reinforced further unilaterally to act that: impasse, merely observation has reached an holds meaning the reasonable of an contracting parties’ confidence [t]he ambiguous term incorporate it chose to and an process arbitra- the arbitration its unilateral schedule. special competence in presumed tor’s concerning bargaining agree- matters grant summary judgment on be- the con- terminate with ments does not half of CRST is reversed and the district their interest obtain- tract. Nor would judgment court is instructed to enter inexpensive resolution ing prompt and requiring the Union to be sub- disputes by expert tribunal. their grievance process. mitted to the Hence, reason to construe there is little to mean this contract HENLEY, Judge, concur- Senior Circuit submit their contractual intended dissenting. ring and arising claims under the grievances and finding that I concur with the court’s immediately on the contract to terminate genuine of material evi- there is no issue contract; the alterna- termination of the proper the case is a dentiary fact and that remedy is the tive lawsuit However, I summary judgment. one for remedy the clause was de- properly also that the district court believe signed to avoid. case, and that its resolved the merits of the Nolde, 430 U.S. at judgment should be affirmed. to a reference in the schedule largely upon Nolde Bros. v. Lo- Relying procedure indicates that at Confectionery Bakery No. cal implemented the

time CRST Union, 430 U.S. Workers *6 that, schedule, contemplated for at least (1977), alleged and the 51 L.Ed.2d 300 period, employer-employee fric- an interim ambiguity language found CRST’s be re- working conditions would tion over hours and the unilateral schedule of dispute resolution solved a method of today duty finds a to arbitrate. court lawsuits.5 other than presump- Heavy placed reliance is on the parties to a labor In view of our conclusion that the stated in Nolde that tion provisions to ambiguous unilateral schedule’s intend arbitration contract drafter, agreement. the against expiration should be construed the we the of survive sup- finding However, facts here hold that the district court erred little the Although complete, Cir.1985). Garland, the record is not we note panel relying alleges complaint that CRST the Union in its specific provisions of the collective initially agreed to submit the agreement parties’ bargaining and the history, grievance procedure prescribed the under the affirmed the trial court’s conclusion that contract, expired hearing which involved a be- occurring based on events while the fore the Iowa State Joint Area Committee at its expired contract was still in effect were arbitra- November, monthly meeting in 1983. CRST However, reasoning ble. inap- in Garland is time, appeared prior and the Union at that posite to the facts before us now. In commencing hearing CRST renounced its Garland, bargained-for a provid- contract clause intent to submit committee implication clear that the did not contract, process post-expiration grievances intend that would be process CRST’s ances, under the Here, contract to arbitrable. no similar clause expired. had parties' expired found in the contract. In addi- post-impasse in Garland there existed no 5, 1985, panel 6. On December a of this court schedule which continued Mining decided Garland Coal & Co. v. United reimplemented post-expiration grievance or a America, al., Mine Workers et as is the case here. of 688 v. Teamsters Local Union John J. In the presumption. the use of this ports (8th Cir.1983) (em Meier 718 F.2d 286 motion for with its affidavits ployees pay entitled to vacation because that: established summary judgment, CRST eligibility requirements expira met before (1) between there was agreement). tion of grievances af- to how to handle parties as bargain- expiration of the ter the attempts apply here The court Nolde (2) during negotiations ing agreement; by stating that this involves con- grievance procedures sides both tinuing right, Ottaway’s right not to be those different from which were discharged just cause. But the December, (3) agreement; just to be cause is provided for a dissimilar severance and vacation circumstances; only in limited dure pay. employee An cannot work towards it attempts by the Un- rejected had all or strictly accumulate it over time. It is grievances. ion to creature of contract and beyond its life should not extend contract Moreover, misplaced majority’s re- expiration. County Ottawa Jak- presumption pays on this no more liance linski, (1985). 423 Mich. 377 N.W.2d 668 lip service to the obverse rule of law party that a cannot be forced into arbitra- Next, passage I note that the would in the absence of a contractual obli- tion year expiration than a more gation. Id. at 97 S.Ct. at 1071. employee’s discharge rights involve appear to facts do not using further erodes confidence in here the contract. arising under of an presumption arbitrability. Court dispute over whether Here is holding by stating Nolde limited its discharged be been have Ottaway should speculate “we not as to need the arbitrabil- respon he was company found cause ity post-termination contractual claims occurred over for an accident sible which, us, presently unlike one before the basic the termination year after a reasonable time are not asserted within cases In agreement. expiration.” Nolde, after the contract’s found has been right to arbitration where at 255 n. at 1074 n. 8. 430 U.S. S.Ct. agreement, of an majority’s analysis it is diffi- Under the rights which to has involved comprehend any right would cult to during the or accrued degree vested some continuing right. give This would abe contract, merely ripened life of the meaning to the words a much broader at See id. after termination. contract,” “arises under the id. (severance pay); Bottled Glover at 1070 *7 I 1070, believe 282, No Inter Corp. v. Local Gas Court ever intended. Teamsters, 711 Brotherhood national Cir.1983) (discharge of (2d F.2d 482 majority I has erred in also believe leading acts where all employees arbitrable finding unilateral schedule is that CRST’s termination discharge occurred before grievance procedures. ambiguous as to Corp. v. Unit contract); Metals Federated It is asserted that (3d Cir.) because CRST’sunilat- Steelworkers, 861 F.2d 648 eral schedule mentions a to submit rights), cert. de (dealt pension plan with arbitration, seniority disputes and is si- 70 nied, 454 U.S. rights may lent as to what other be sub- v. (1981); Steelworkers 474 United L.Ed.2d mitted, ambiguous. the schedule is I see Casting Division-Conval- Pitt Steel Fort (3d Rather, Inc., ambiguity whatever. this clear Penn, F.2d vaca (dealt pay, explicitly statement shows how far CRST severance intended arbitration to reach. If it had pen coverage, and life insurance pay, tion further, intended arbitration to reach denied, rights), cert. plan sion could have so stated. (1981); cf. agree can I with the court that Nor “[a]s Roy oper- Taft, CRST’s unilateral schedule A. JOHNSON John J. Sheller, agreement retaining Appellees,

ates as an interim grievance procedure for the resolution of disputes.” The letter supra at 383. See ORR, Secretary Force, Verne of the Air NLRB, 441 Broadcasting Co. v. F.2d Taft Gerard, Major General, Francis Wilfred (8th Cir.1971), which was found to be Menard, Jr., General, Major C. Colonel an interim “it in- stated is our Murphy, Brigadier John General tention to continue effect Young, Charles Air Commander Lt. hours, and other conditions of Billy Col. McDaniel. presently fully in effect as set forth 22,1966, draft of June and we will continue Appeal of Air Commander Lt. Col. handling any grievances arise McDANIEL, Billy Appellant accordance with the set forth No. 84-5859. distinguishes therein.” Id. at 1383. This from the case at hand because here MENARD, Appeal Jr., C. Ma- Wilfred CRST’s unilateral schedule does not broad- jor General, Murphy, Colonel John controversies, ly agree to all Brigadier Young, Ap- General Charles only disputes concerning seniority. rather pellants in No. 84-5860. Finally, majority I take the to task for its 84-5859, Nos. 84-5860. attempt distinguish Garland Coal & Mining Workers, Co. United Mine United Appeals, States Court of F.2d Cir.1985), from this case. Third Circuit. supra majority at 384 n. 6. The states Argued Sept. 10, 1985. that in Garland there was not a unilateral Decided Jan. schedule “which continued or reimplement- Rehearing ed a post-expiration Rehearing En Banc as in the case here.” type Id. This analysis 17, 1986. Denied March simply begs question to be decided. indicated,

As I would affirm.