International Brotherhood of Electrical Workers, Local 21 v. Illinois Bell Telephone Company
491 F.3d 685
7th Cir.
2007
Check Treatment
Docket

*2 Before CUDAHY, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. After Illinois Bell Telephone Company (“Company”) refused griev- arbitrate a ance, the International Brotherhood of Electrical Workers, (“Union”) Local 21 filed a motion to compel arbitration in federal district court. Under the terms of parties’ collective bargaining agree- (“CBA”), the district court found the grievance arbitrable and granted the mo- tion. We affirm. Background

I. CBA has been in effect since June late Company informed the Union that planned to implement new “consumer per- formance management guidelines.” In the past, employees were evaluated on a “work flow” system. Essentially, employees were required perform specific tasks response to actions taken the customers they whom dealt. The new strictly prohibiting “no strike” awith system flow work replace would any circum- striking employ- wherein system, evaluation sales provisions of the above None actual stance. based be evaluated ees arbitration, excluded explicitly fail should been anIf made. sales *3 per- specifically the CBA nothing could be in he and requirements, his sales meet perform- of implementation fired. to the eventually tains disciplined guidelines. ance the plans, of the notice Upon the challenging grievance a filed Union Analysis The II. guidelines. implementation discussions of in a series engaged parties the district court’s review “We Compa- the guidelines, the regarding novo.” de compel arbitration ruling program. to the changes some made ny Catel Inc. v. Logistics, United American not however, could parties end, the In the (7th F.3d 319 Corp., Dev. lus request- The Union dispute. their resolve Co., Cir.2003) Grain v. Iowa (citing Harter arbi- submitted be grievance that the ed Cir.2000)). (7th 544, 549-50 F.3d 220 refused, assert- tration, the but a of contract a matter “[AJrbitration arbitrable was not grievance the ing arbi to submit to required be party The Union CBA. the of he has which tration arbitration compel motion filed its then Techs., Inc. toso submit.” agreed Federal pursuant federal v. Commc’ns § 4. Act, 9 U.S.C. Arbitration 1415, 648, 643, 106 S.Ct. clause, § 13.16 The arbitration Steelworkers (1986) (quoting arbitrable: CBA, topics what defines Co., Navigation v. Warrior Am. ex- shall arbitration invoke right to The 1347, 4 L.Ed.2d 363 U.S. involve: which only matters tend Inc. Group, (1960)); Int'l Med. applica- (A) Inc., Ass’n, Am. Arbitration provisions terms or any of tion derives arbitrator (7th excluded unless Agreement, authority to resolve his Agreement. provisions specific to do him allow from their (B) at Inc., F.3d Group, Med. so. Net (6) months or more six with clearly provide 842. Unless arbitrability Service. Credited otherwise, question arbi court, not the by a decided clause, properly Un- arbitration To invoke trator. provisions to several points ion application CBA, arbitrability dis resolving When dispute. in this may be lib mind the must bear a court putes, clause, § 1.01 of First, arbitration favor policy eral federal recognizes “The states: Corp., v. McDonald’s James agreements. bargaining the exclusive (7th Cir.2005); see 672, 676-77 Compa- employees [the] agent for con contract §§ “[WJhere U.S.C. “mutual Second, requires § 4.01 ny....” pre a there tains ap- fair respect” responsibility sense arbitrability sumption of with “in accord CBA plication particular arbitrate order ‘[a]n with consistent meaning and intent unless denied be should grievance rep- exclusive status as Union’s assurance positive said may be includes Third, CBA resentative.” the arbitration clause is not susceptible contract,” plus specific ju exclusion for an interpretation that covers the asserted disputes); risdictional Grocers Certified dispute. Doubts should be Illinois, in fa resolved Produce, Inc. v. Fresh & Frozen ”

vor coverage.’ AT & T Fish, Fruits & Vegetables, Butter, Eggs, 106 S.Ct. 1415 (quoting Cheese, Warrior & Florist, Poultry, Nursery, Land Gulf, 363 U.S. at 1347); scape & Allied Employees, Drivers, Chauf see Continental Cas. Co. v. feurs, American Nat. Warehousemen & Helpers Union, Ins. 730-31 Cir. Chicago Illinois, and Vicinity, 2005). Cir.1987) (find ing arbitration clause broad where applied When determining whether *4 to “any difference ... between the Em parties have agreed arbitration, to a court ployer and the Union concerning any inter must be careful not to consider the merits pretation or application any of of provi the of the underlying Techs., claim. AT & T sions Agreement”). at U.S. If 1415. the In order to dispute falls determine within whether scope par- the the of the par ties have agreed ties’ agreement, particular submit this arbitration even a seem arbitration, ingly frivolous we must claim turn to must be submitted to specific language Id.; of the arbitration. see arbitration clause. Zurich Am. Ins. Co. When Indus., interpreting contract, Inc., Watts we look first (7th Cir.2006). plain meaning of However, provision, arbitrator’s jurisdiction strive to avoid absurd results. remains See by County limited the terms McHenry v. Ins. West, the CBA. Co. Am. Postal (7th AFL-CIO, Cir.2006). Milwaukee face, On its Runyon, arbitration clause in this Thus, case applies any 13.16(A) § terms of require CBA, adju- dicator arbitrator’s to interpret or authority is apply any limited re term or solving disputes involve the so interpre long as another tation or application provision of of a term CBA the CBA. does specifically exclude that topic from arbitration. spent have much time The district court based its finding of debating whether the arbitration clause in arbitrability upon 4.01, § the mutual the CBA re- is “broad” or “narrow.” While spect and responsibility clause. utility Un- of such categorization, without ion has also argued that context, this dispute in- is best, dubious at the clause does volves the interpretation application appear to be in line with those that have the recognition clause, 1.01, been and thus considered “broad.” See AT & T requires the Company Techs., to submit the dis- at U.S. 106 S.Ct. 1415 pute to arbitration. We prefer (finding begin arbitration clause broad ap where analysis our with the recognition plied to clause. “differences arising -withrespect to the interpretation of this contract or the An arbitrator could interpret the recog- any obligation hereun nition which obligates the Company der”); Int’l Union Operating Eng’rs, to recognize the Union as the employees’ Local Union 103 v. Indiana Constr. Corp., sole bargaining representative, to require Cir.1994) (find only that the Company refrain from deal- ing arbitration clause broad applied where ing with other labor organizations. Alter- to “any dispute ... concerning the inter natively, an arbitrator could interpret pretation or application of the terms of this prohibit clause to the Company First, the hand. case at than the different changes significant making had many years “for that case with- employment conditions of a clause inclusion sought recog- the Union. the consent out specifical- number susceptible to is clause nition at right limiting” ly prohibiting duties may impose interpretations Thus, sub- the issue of Id. issue. Compa- upon the negotiation notice negotiated already been had contracting such is that point ny. The labor-manage- course regular during the the arbitrator —not province found This bargaining. long court. So significant. relevant both point to an susceptible actions Petroleum Indep. Second, the CBA wherein duties, unique provi- rather contained breached the no-strike encompassed suspended sion arbitrate compel arbitration. must refused company we when provi- Arbitration Id. at grievance. reciprocity Gulf, considered generally (citing Warrior sions *5 1347). Bhd. provisions. no-strike 80 for S.Ct. of Teamsters, Chauffeurs, Warehousemen the rec argued 371 Union No. Helpers arbitrabili support ognition 227, Group, Support Logistics opinion 1963 court’s to this points ty, and A 230-31 Am., Inc. Workers Indep. Petroleum different a take on might very well Co., in 324 support. Oil American a strict contains a CBA that meaning in equal by an Cir.1963), mem. 903 aff'd a refusal because no-strike 130, S.Ct. 85 Court, U.S. 379 ly divided otherwise arbitrate company (1964). Independent 333 271, L.Ed.2d 13 options. If without union leave a dis labor Workers Petroleum con- change the unilaterally can subcon company a when arose pute arbitrate, refuse employment, ditions formerly performed was work that tracted striking, from the Union prohibit still Id. at 904. workers. by union recognition clause of the the purposes then with the arbitrability support attempted un- significantly itself the arbitration where us before the case This makes dermined. mandatory arbitration provided Indep. Petro- distinguishable readily arising involving or directly “[questions Workers. leum or al interpretations applications, Indep. Petro- Finally, our decision agree of the leged violations solely on not based was leum ment.” that, because held alsoWe merits. argument union’s to the response compel attempted already had stat Workers, Petroleum Indep. previous issue in the same accepted, means if position, “This ed: relitiga- precluded estoppel suit, collateral of the refusal by alleging party either Thus, F.2d at 324 issue. tion any con respect bargain with other to merits on the a determination be controversy would issue ceivable case. disposition essential po Plaintiffs subject to arbitration. come predates Petroleum Indep. 906-07. Id. at logic.” devoid sition is opinion Court’s Supreme Petro Indep. circumstances pre- strong reaffirmed very however, were case, leum Workers 690

sumption in favor arbitration set forth by those actions.” Illinois State Bd. of in the Steelworkers Trilogy. 643, Elections v. Socialist Workers Party, 440 1415, 106 S.Ct. 89 (1986); L.Ed.2d 648 see 173, 180, 182, U.S. 983, 99 S.Ct. 59 L.Ed.2d United Steelworkers Am. v. American (1979); 230 see also Boggs v. Boggs, 520 Mfg. 564, 363 1343, U.S. 80 S.Ct. 833, 849, 1754, U.S. 117 S.Ct. 138 L.Ed.2d L.Ed.2d (1960); United Steelworkers (1997); Washington v. Confederated Am. v. Warrior Navigation Co. Bands and Tribes Yakima Indian Na U.S. 80 S.Ct. 4 L.Ed.2d tion, 478 n. (1960); United Steelworkers Am. (1979). From the Su v. Enterprise &Wheel Car Corp., 363 U.S. preme Court’s equally divided summary (1960). L.Ed.2d 1424 affirmance in Indep. Workers, Petroleum Supreme precedent Court constrains we can infer no comment on approval reading broad Indep. Petroleum Work or disapproval of the use of recognition ers, which centered around with a clauses support arbitrability. unique bargaining history and CBA. See Given the significant differences be- Mobil Oil Corp. 8-766, Oil, v. Local Chem- tween the CBA and bargaining history in ical & Atomic Workers Int’l this case and that in Indep. Petroleum (1st Cir.1979) (“The Workers, we conclude that Indep. Petro- court’s reasoning on the issue, first even if leum Workers is not controlling in this treated as more than dicta to its collateral case. Additionally, the Supreme Court’s estoppel holding, is pertinent to this summary affirmance sheds no light on the case. The arbitration clause in the instant viability of the Union’s arguments because dispute does not a voluntary involve arbi- *6 the decision may very well have rested tration provision.... ”); Humble Oil & upon the collateral estoppel holding. Co. Refining v. Indep. Indus. Workers’ 337 F.2d Cir.1964). The Union in this alleges case that the Indeed, a number of our sister circuits actions constitute a breach of have found that allegations that CBA’s recognition clause § 1.01. recognition clause has been violated can Up until the proposed implementation of validly support arbitrability. Oil, E.g. the new performance guidelines, employ- Chemical & Atomic Workers Int’l Union ees were evaluated upon based the tasks Co., v. Phillips 66 976 F.2d 278-79 they performed. If they performed the (5th Cir.1992); E.M. Diagnostic Sys., Inc. tasks that the Company told them to at v. Local Teamsters, Bhd. of the appropriate times, they received a fa- Chauffeurs, Warehousemen Helpers vorable evaluation and no discipline result- (3d Cir.1987); ed. proposed The guidelines would re- Int’l Ass’n Machinists v. quire the employees to deliver results. If Co., States Potash the employees do not meet their sales (10th Cir.1959). quotas, they will be disciplined possi-

While an equally divided Supreme bly discharged. Court At the time that the cur- affirmed Indep. Petroleum Workers rent CBA with- was bargained over, the Union out discussion, Supreme Court has in- had no indication that such a change was structed that “summary affirmances on have the horizon. at Attempts bargaining considerably precedential less value than between the Company and the prior Union opinion an merits,” and such value to implementation the guidelines “can extend no farther than precise reached impasse, and the Union has al- presented issues and necessarily decided leged that this bargaining in good not Co., 865 F.2d Elec. v. Gen. Lodge No. com- or to strike ability Without faith. presumption The recourse. has arbitration, the Union pel may “it when arbitrability is overcome assurance positive say with We that assurance positive with be said suscepti- not clause the arbitration that anof susceptible clause arbitration good wherein interpretation ble of dis the asserted that covers interpretation clause that allegation faith Navigation pute.” Warrior binds violated has been CBA 1347; AT & T at S.Ct. 363 U.S. mandatory arbitration. S.Ct. 1415. at at Techs., 475 U.S. AT &T exempted could The in the arbitration The arbitration, but (“CBA”) alleged has to. Union chose invoke right to “The provides: faith bargain did not involve: only to matters extend shall guidelines implementation prior application (A) or statements employee has submitted provisions or the terms any of implementation unilateral alleging by specific excluded unless Agreement, threatens the performance (B) The Agreement. provisions parties. relationship between continued (6) or six favor presumption Given R. 14^1. Service.” Net Credited more months met bur- arbitrability, added.) the term use (Emphasis We hold den. of limitation— a term “only” obviously — in this for arbitration adequate basis is an inter- expansive less a somewhat suggests address need not case, therefore by the Union urged than pretation arguments. other Union’s The dis- colleagues. by my adopted here is issue pute III. Conclusion if it only it is arbitrable guidelines, reasons, judgment foregoing For application involves court is the district AffiRmed. CBA, or the in the a term *7 employee. discipline dissenting. SYKES, Judge, Circuit provi- or no terms The CBA contains presence dissent. respectfully I relating to performance sions whatsoever creates in a contract an arbitration standards, dispute or guidelines arbitration, but in favor presumption policy guidelines performance concerns whether doubts only that this means pur- aof itself, not are resolved covered dispute is particular majority con- Nonetheless, the it. suant to a mat- “arbitration coverage; in favor be- is arbitrable dispute cludes be re- party and a of contract ter involve it “could” cause any to arbitration to submit quired “recognition” so-called to submit.” agreed so he That op. Majority CBA. & Am. v. Warrior Steelworkers United “The as follows: states § 1.01 of 574, 582, 80 U.S. Navigation 21] [Local the Union recognizes (1960); AT & T 1347, L.Ed.2d those agent Am., the exclusive v. Commc’ns Inc. in the State 1415, employees 106 S.Ct. 475 U.S. County Porter Lake and ... and Illinois (1986); Machin Int’l Ass’n [sic], Indiana.” Workers, Progressive Aerospace & ists face, On its the recognition clause mere- informal discussions with the Company. ly is, specifies who—that which union'— Accordingly, meetings were held and shall be recognized as the employees’ bar- changes made to the guidelines as a result gaining agent; it does not any address of the Union’s input objections spe- topics substantive pertaining to employ- cific aspects of policy. ment terms and general conditions as a So it is not surprising that matter, much performance less guidelines does argue that the Company failed in particular. Nor does articulate refused bargain good faith, beyond beyond duties recognition or describe the suggesting that what occurred was “not scope of bargaining. Scope of bargaining bargaining in any sense,” real whatever issues, and rights obligations aris- that means. has not alleged, ing from bargaining impasses violations, for example, that bargaining had not are governed by the National Rela- Labor reached impasse before the Company im- Act, tions U.S.C. 158 et seq., and a posed guidelines. See In well-developed body judicial and NLRB Tugs, (“In land 918 F.2d at 1307 the event decisional interpreting law the statutory of impasse, the employer permitted duty to bargain collectively in good make unilateral changes in conditions faith. See generally Katz, NLRB v. employment, but only as to matters that 82 S.Ct. 8 L.Ed.2d 230 have been previously offered to un (1962); NLRB v. Ins. Agents’ Union, Int’l ion.”); Union, Int’l Auto., United Aero 477, 498, 361 U.S. 80 S.Ct. 4 L.Ed.2d space Agric. Implement & (1960); NLRB v. Wooster Div. of (“Where 765 F.2d at 179 a mandatory Borg-Warner Corp., subject [of bargaining] is not contained in (1958); L.Ed.2d 823 Tugs Inland contract, an employer must bargain in NLRB, 1307-08 Cir. impasse faith to represen- 1990); Kankakee-Iroquois Co. Employers’ tatives; if reached, NLRB, Ass’n v. employer may unilaterally implement its Cir.1987); Auto., bargaining proposal with respect Aerospace Agrie. Implement Workers of matter not contained in agreement.”). NLRB, Am. v. grievance Union’s (D.C.Cir.1985). challenges per- There is nothing formance themselves, generic not the recognition clause that could be bargaining conduct of the interpreted Company. to expand the parties’ statuto- ry bargaining duties or the derivative The majority concludes that the rights and obligations flowing from bar- is arbitrable because the recognition clause gaining impasses or illegal bargaining be- *8 “could” be interpreted “to prohibit the havior. Company from making significant changes

In any event, the in Union the does not assert and conditions of employment that the Company failed or without refused to bar- the consent of the Major- Union.” gain in good faith ity over performance op. the at 688-89. Such an interpretation is guidelines. Indeed, the impossible; record reflects it would require the arbitrator that the Company gave notice of the to new completely rewrite the recognition policy and offered to meet with Union engrafting a duty that is not there. representatives bargain to Indeed, over it. The such an interpretation would con- Union has historically taken position the tradict principles well-settled in the case it will not formally “bargain” over law pertaining to the statutory duty to policies of this sort but agreed to meet for bargain collectively and establishing the Inc. Local Systems, Diagnostic E.M. from arise obligations rights Team- Brotherhood 169, International illegal impasses bargaining good-faith sters, Warehousemen Chauffeurs, mandatory- aWhile demands. bargaining (3d America, 812 F.2d Helpers pre in a bargaining contained subject em- the about dispute Cir.1987), a agreement bargaining existing collective outside work subcontract to right ployer’s consent, an without altered not be may bargain- unit. The bargaining the im unilaterally to permitted employer provided agreement ing conditions employment new plement violation of a claimed “arising out disputes bargain after agreement the in contained contained also but agreement” Inland impasse. faith ing re- explicitly rights management 1307-08; Int’l F.2d Tugs, right sub- the employer the serving to Imple Agric. Auto., Aerospace interference without work contract at 179. F.2d held Circuit Third A divided union. the part on the practice labor Also, unfair an was It arbitrable. the bargain duty to the suspends of a subject said, if the majority enough, the unilaterally employer permits fell within grievance matter employment. new conditions implement by the collec- protected interests” “zone of F.2d Tugs, Inland An unfet- Id. agreement. bargaining tive majority subcontract, right tered are Because right sub- concluded, include “would CBA, the current contained unit bargaining all work contract duty bargaining good-faith agree- with the be inconsistent would obtain duty to no but NLRA Union ment’s implement- before the Union consent em- for the agent bargaining strike” The “no policy. ing the object- judge dissenting Id. The ployees.” with- Union not leave does in the CBA redrawn “majority [has] ed col- in the recourse; remedies out the man- nullifying Agreement,” parties’ NLRA. process lective rights reservation agement sus- is not simply unbounded way an an ceptible J., (Garth, at 97-98 clause. power of veto sort vest Diag- E.M. majority dissenting). majority. by suggested “zone for its authority cited nostics arbitrability ques- approach interests” by my cited law case out-of-circuit tions. or bad- distinguishable either colleagues Ass’n Oil, & Atomic Chemical International Finally,

ly reasoned. Co., Potash Phillips States v. United International Machinists Cir.1959), Cir.1992), also arbitrability of labor/management that a held addressed case although testing drug subcontracting, dispute about was silent arguably because arbitrable policy was *9 that be- held Circuit Tenth agree- subject. violated the effect could subcontracting cause, health- cause just recognition, ment’s bar- as an effective “injuring decision court’s and-safety clauses. implicated dispute unit,” the gaining rely on the solely specifically did contract clause, the ma- agreement’s holding was This arbitrable. therefore does here. opinion jority based on the court’s rather expansive view routine in collective bargaining agree interpretive its “It task: ments, stifle the as are arbitration clauses that limit underlying purposes of the agree- whole arbitration to disputes involving an inter construe it according to dry pretation or application of the terms of the words. It is for put tous meat on the parties’ agreement. Henceforward, recog skeleton rather than tear the flesh from nition clauses will be invoked as malleable the bones.” Id. at 498. This hyperbole, enough to compel arbitration disputes reasoning. I find none of these cases that do not squarely implicate any other persuasive. term or of the contract. my In judgment,

The Union this argues in the violates the fundamentally alternative that 4.01 of contractual nature responsi- “mutual arbitration and the bility and axiom respect” clause, that “a party implicated required be dispute. this submit any dispute which he “recognize” that not agreed dealings “all so to submit.” between Warrior & be, them be, Navigation Co., continue to characterized by mutual responsibility 1347; and respect” 475 U.S. at that the terms of 648-50, 106 the CBA applied shall be S.Ct. 1415.

“fairly in accord with its intent and mean-

ing and consistent with the Union’s status

as exclusive bargaining representative.”

Because the CBA is silent perform-

ance standards, the Company

cannot be guilty of “unfairly” applying a

term of the CBA by adopting guide-

lines. The Union has made no effort to UNITED STATES of America, identify how the performance guidelines Plaintiff-Appellee, policy itself might reflect a lack of “mutual responsibility and respect.” Accordingly, the arbitration clause— Kyron MURDOCK, Defendant- only covers those disputes that in- Appellant. volve an interpretation of a provi- term or

sion of the CBA or No. the 06-2183. not reasonably susceptible of —is United States Court of Appeals, an interpretation that covers dispute. Seventh Circuit. dispute over the performance guidelines is not arbitrable. Argued June 2007. In closing, I have serious concerns about July Decided the essentially limitless today’s reach of decision. If is arbitrable anas

arguable violation of

clause, then any almost is;

Company action that can be characterized

as contrary to the Union’s interests

“could” violate the recognition clause if its

scope is as boundless as the majority be-

lieves. Recognition clauses of this sort are