                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 13, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STEEL, PAPER AND
 FORESTRY, RUBBER,
 MANUFACTURING, ENERGY,
 ALLIED INDUSTRIAL AND
 SERVICE WORKERS
 INTERNATIONAL UNION, and its
 Local 13-857, a labor organization,
                                                        No. 09-5143
              Plaintiff-Appellant,          (D.C. No. 4:07-CV-00316-GKF-PJC)
                                                       (N.D. of Okla.)
 v.

 CONOCOPHILLIPS COMPANY, a
 foreign corporation,

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK, and TYMKOVICH, Circuit
Judges.


      This is an appeal from the district court’s denial of arbitration for a number

of grievances arising from various organizational changes made by

ConocoPhillips in its oil refinery in Ponca City, Oklahoma. The United Steel


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Workers’ International Union and its Local 13-857 challenged these changes as

violating the Collective Bargaining Agreement (CBA) between the Union and

ConocoPhillips, and sought an order to compel arbitration of its grievances. The

Union now appeals the district court’s finding that these grievances are exempt

from arbitration under the CBA. We conclude the grievances concerning the

elimination of jobs as part of the reorganization are exempt from arbitration. But

we also conclude several of the grievances regarding work reassignments are

eligible for arbitration.

       Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM in part

and REVERSE in part.

                                  I. Background

       The Union is the collective bargaining representative for many employees

of this ConocoPhillips oil refinery. Union employees are organized into

“progression units” composed of one or more job positions, or “classifications.”

       ConocoPhillips and the Union are party to a CBA that covers a wide range

of matters pertaining to wages, hours, discipline, and other conditions of

employment. It also lays out a three-step process for resolution of disputes that

arise under the CBA. The first two steps involve discussions between Union

representatives and escalating levels of management within ConocoPhillips. If

the parties cannot resolve a grievance after the first two steps of the process,

either party may advance the grievance to the final step, arbitration. The CBA

                                         -2-
broadly provides that “differences arising between the Union and the Company

relating to interpretation or performance of this Agreement . . . are arbitrable,

except as otherwise provided by this Agreement.” App. at 284.

      But not all grievances are arbitrable. Article 11 of the CBA, entitled

“Management’s Rights,” commits certain decisions to ConocoPhillips’s

discretion:

      Other responsibilities, solely those of Management are: the
      assignment of work subject only to the other provisions of this
      Agreement . . . the determination of the number of persons required
      to operate and maintain any portion or all of the physical plant . . .
      the decision to operate, determine the level of operation, or to shut
      down any portion or all of the plant . . . . to determine and to
      redetermine the organization of the Ponca City Refinery . . . to
      determine the methods, processes and materials to be employed; to
      discontinue in whole or in part processes or operations.

Id. at 260 (emphasis added). Article 11 further provides that disputes arising

from these decisions are exempt from arbitration: “Grievances originating under

Article 11 are subject to the grievance procedure but cannot be submitted to

arbitration; and no arbiter has the authority to rule on Article 11 . . . .” Id.

(emphasis added).

      In 2006, ConocoPhillips made several organizational changes in the

refinery to improve operating efficiencies. It eliminated a position known as the

Lead Operator, which was primarily responsible for maintaining a safe workplace,

performing limited administrative duties, and assisting other operators as needed.

The bulk of the duties previously performed by the Lead Operator were then

                                          -3-
redistributed to the existing Unit Operator position. In addition, some

supervisory duties were reassigned to the newly created Area Production

Supervisor (APS) position, a non-Union position that provides day-to-day

guidance to Unit Operators to ensure operations are safe, environmentally sound,

and consistent with the company business plan. ConocoPhillips did not terminate

the twenty-five Lead Operators whose jobs were eliminated, but rather moved

them into Unit Operator or APS positions. After the reorganization, the Union

filed multiple grievances contending the elimination of the Lead Operator

position and the reassignment of work violated a number of provisions of the

CBA.

       In addition to the elimination of the Lead Operator position, ConocoPhillips

also reorganized the Still Cleaner unit. Workers in this unit are responsible for

cleaning out the coke still equipment between batch operations. In the past,

cleanouts were performed by a three-member crew composed of a Cleaner, a

Sluicer, and a Helper. With the stated purpose of improving safety,

ConocoPhillips merged these three positions into one general Still Cleaner

position, and assigned two Still Cleaners to each cleanout. Again, ConocoPhillips

did not terminate affected employees, but instead transferred them to other

positions in the refinery. Relatedly, ConocoPhillips reassigned some aspects of

the cleanout preparation work previously performed by the eliminated positions to

the newly created Drum Operator position within the Coker/Combo unit. This

                                         -4-
position is now filled by Unit Operators in the Coker/Combo unit who rotate

through the position on a weekly basis. The Union filed grievances challenging

the elimination of the three original Still Cleaner positions and the reassignment

of work as a violation of multiple provisions of the CBA.

      At about the same time, ConocoPhillips eliminated a Tester position in the

Control Laboratory unit that was vacated when an employee was promoted to

another position. ConocoPhilips asserts improved efficiencies as a result of the

reorganization made the individual position unnecessary. The Union also

submitted grievances over the elimination of the Tester position and the alleged

reassignment of work as violating several provisions of the CBA.

      ConocoPhillips denied each of the Union’s grievances at the first and

second steps of the dispute resolution procedure, leading the Union to demand

arbitration. ConocoPhillips declined to arbitrate on the theory that each of the

grievances arises under the management rights section of Article 11 and is

therefore exempt from arbitration.

      The Union filed this action to compel ConocoPhillips to arbitrate the

grievances. The district court granted ConocoPhillips’s motion for summary

judgment after concluding Article 11 expressly exempts the Union’s grievances

from arbitration. This appeal followed.

                                  II. Discussion




                                          -5-
      On appeal, the Union challenges the dismissal on two grounds. First, the

Union argues the district court improperly considered the merits of the grievances

in addressing their arbitrability under the CBA. And second, it contends the

district court erred in concluding the grievances were not arbitrable.

      We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court. See Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this

standard, we review the evidence and draw inferences in the light most favorable

to the nonmoving party. See Byers, 150 F.3d at 1274.

      It is well settled that “arbitration 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.” Local 5-857 Paper, Allied-Industrial, Chemical and Energy Workers

Int’l Union v. Conoco, Inc., 320 F.3d 1123, 1126 (10th Cir. 2003) (quotation

omitted). But in considering whether a contract requires the parties to resolve a

particular grievance in arbitration, the court must not rule on the potential merits

of the underlying claim. Id. A grievance may be arbitrable even if it is frivolous

or unlikely to succeed. AT&T Techs., Inc. v. Commc’ns Workers of America, 475

                                          -6-
U.S. 643, 649–50 (1986). Thus, the question for a court considering an action to

compel arbitration is not whether the contract gives support for the underlying

grievances, but whether the contract requires the parties to arbitrate those

grievances. See id.

      Where a collective bargaining agreement includes an arbitration clause,

there is a presumption of arbitrability. Local 5-857 Paper, 320 F.3d at 1126.

Arbitration should be denied only where “it may be said with positive assurance

that the arbitration clause is not susceptible of an interpretation that covers the

asserted dispute.” Id. (quotation omitted). Where the arbitration clause is broad,

only an express exemption provision or otherwise forceful evidence of purpose to

exclude the claim from arbitration will prevail. Id. A broad clause, such as the

one in this case, “refers all disputes arising out of a contract to arbitration.”

Cummings v. FedEx Ground Package Sys., Inc., 404 F.3d 1258, 1262 (10th Cir.

2005) (quotation and alteration omitted).

      A. The District Court’s Decision

      Because the CBA’s arbitration clause is broad, the question before the

district court was whether Article 11 expressly exempts the Union’s grievances

from arbitration. In making this determination, the court began with a review of

Article 11. It noted Article 11 exempts a number of management decisions from

arbitration absolutely. But this article creates one exception in stating assignment

of work is committed to management’s discretion “subject only to other

                                          -7-
provisions of this agreement.” App. at 260. The court therefore concluded that,

in order to determine whether a reassignment grievance is expressly excluded

from arbitration, it must consider whether any other CBA provisions are

implicated by the company’s action. The court interpreted this exception broadly,

to include both any reassignment and any other managerial decision that

“involves” reassignment. As a result, the court performed this analysis not only

for each of the reassignment-of-work grievances, but also for each of the

elimination-of-jobs grievances.

      After careful review of each of the CBA articles cited by the Union, the

court concluded that none are implicated by the reassignment-of-work and

elimination-of-jobs grievances. It therefore found these grievances are expressly

exempted from arbitration by Article 11. The court also held that, where

reassignment-of-work is not involved, elimination-of-jobs grievances are

absolutely exempted from arbitration by Article 11. Finally, the court found as a

factual matter that ConocoPhillips did not reassign the work previously performed

by the Tester position, and disposed of this grievance on separate grounds.

      B. Interpretation of the CBA

      The Union contends the district court should have determined whether the

grievances are exempt from arbitration by looking only to Article 11,

and the court performed an inappropriate merits review by considering whether

each article cited by the Union actually applies to each grievance.

                                        -8-
      We agree in part and disagree in part with the district court’s conclusions

on this point. Because we find the CBA requires different analyses for the

reassignment-of-work and elimination-of-jobs grievances, we address the Union’s

challenge as to each separately.

      1. Reassignment-of-Work

      The district court’s method of analysis in considering the reassignment-of-

work grievances was correct under the CBA. The court’s review of other articles

of the CBA to determine whether they apply to each reassignment grievance is

consistent with the language of the agreement. Article 11 explicitly makes the

exemption for assignment conditional on the other provisions of the CBA. The

district court’s method also comports with our reasoning in interpreting a similar

collective bargaining agreement between these same parties. See Oil, Chemical

and Atomic Workers Int’l Union Local 5-391 v. Conoco, Inc., 64 F. App’x 178,

182–83 (10th Cir. 2003) (performing a similar analysis where ConocoPhillips’s

right to assign work was “limited by other provisions in the Agreement”

(quotation and alteration omitted)). We find this analysis does not constitute an

improper review on the merits. The reviewing court may consider the entire CBA

to determine whether a grievance implicates a particular provision, as dictated by

the terms of Article 11, without actually reaching the merits of the grievance.

      2. Elimination-of-Jobs




                                        -9-
      But we conclude it was not necessary to consult the other provisions of the

CBA to determine whether Article 11 exempts elimination-of-jobs grievances that

“involve” the reassignment-of-work. The assignment clause cannot be read so

broadly. Because managerial decisions will frequently result in redistribution of

work, the district court’s interpretation would cause the single exception in

Article 11 to swallow the entire provision. It is also obvious under the CBA that

grievances regarding the elimination of a position and the reassignment of that

position’s duties are separable. For example, ConocoPhillips might have an

absolute right to eliminate a position but face constraints in the way it reassigns

the work of that position.

      Thus, we will review only Article 11 to determine whether the Union’s

elimination-of-job grievances are expressly exempted from arbitration.

      C. The Arbitrability of the Union’s Grievances Under the CBA

      With this background, we address the arbitrability of each grievance raised

by the Union on appeal.

      1. Lead Operator Position

      First, the Union lodged multiple grievances challenging ConocoPhillips’s

decision to eliminate the Lead Operator position and divide the work previously

performed by this position between Unit Operators and APSs. 1

      1
         In the district court, the Union asserted these actions violated Articles 1,
3, 20-1, 20-4, 20-5, 20-6, 20-15, 21-1, 21-9, and Appendix A of the CBA. On
                                                                        (continued...)

                                         -10-
      Elimination of the Lead Operator Position

      As the district court noted, Article 11 vests management with absolute

discretion to “[determine] the number of persons required to operate and maintain

any portion or all of the physical plant,” to “shut down any portion or all of the

plant,” to “determine and to redetermine the organization of the Ponca City

Refinery,” to “determine the methods, processes and materials to be employed,”

and to “discontinue in whole or in part processes or operations.” App. at 260.

Article 11 goes on to provide that grievances arising from these decisions are not

subject to arbitration. Id. We find a grievance regarding elimination-of-jobs

arises under the above-listed provisions, and is therefore exempt from arbitration

under Article 11. Because this exemption is absolute, we need not consider any

other provision of the CBA in reaching this conclusion.

      Reassignment of the Lead Operator Duties

      The exemption is not absolute as to reassignment-of-work. As set forth

above, to determine whether Article 11 exempts a reassignment-of-work

grievance from arbitration, we must consider whether the grievance implicates

other provisions of the CBA.



      1
       (...continued)
appeal, the Union also claims these actions violated Articles 21-4 and 21-5.
Because the 21-4 and 21-5 claims were not properly raised before the district
court, we need not consider them here. Tele-Commc’ns, Inc. v. C.I.R., 104 F.3d
1229, 1233 (10th Cir. 1997).

                                         -11-
      We agree with the district court that Articles 1, 3, 20-1, 20-4, 20-5, 20-6,

20-15, 21-9, and Appendix A are not implicated by the challenged reassignment.

But we disagree as to Article 21-1. Because this provision limits ConocoPhillips’s

ability to reassign work, the question of whether it was violated by the

reassignment of Lead Operator duties is arbitrable.

      To reach this conclusion, we must consider each provision in light of the

Union’s grievance.

                                         1.

      Article 1, entitled “Recognition,” provides that the Union is “the sole and

exclusive representative for the purposes of collective bargaining in respect to

rates of pay, wage, hours of employment and other conditions of

employment . . . .” Id. at 258. The Union argues ConocoPhillips violated this

provision when it assigned part of the work previously performed by a Union

position (the Lead Operator) to a non-Union position (the APS). The Union also

argues Article 1 was violated when ConocoPhillips made changes in the work

assignment of Union employees without bargaining. We agree with the district

court’s conclusion that this provision is not implicated by the reassignment of

Lead Operator work. Article 1 only mandates that the Union be the sole

employee representative in negotiations with ConocoPhillips. It does not require

that certain work be performed by Union employees or that any particular topic be

subject to collective bargaining.

                                        -12-
      Article 3, entitled “Exclusive Agreement,” provides:

      This contract is the entire Agreement between the [parties]. No
      practices, payments of wages or benefits prior to this Agreement date
      shall act to change or enlarge the express wording of this Agreement.
      All Agreements subsequently entered into by the parties during the
      term of this Agreement shall also be considered a part of this
      Agreement when reduced to writing and signed by authorized
      representatives of the Company and the Union.

Id. at 258. The Union contends when ConocoPhillips reassigned the work of the

Lead Operator position, it “changed” the terms of the CBA without complying

with Article 3’s requirement that contract changes be reduced to a signed writing.

This provision would be relevant if ConocoPhillips attempted to defend the

reassignment on the theory that it was authorized by a new contract term. An

arbitrator might then conclude that the new term was not valid under Article 3,

and that ConocoPhillips’s actions were unauthorized. But ConocoPhillips makes

no such argument. And there is nothing in Article 3 that limits ConocoPhillips’s

ability to reassign work. We therefore find Article 3 is not implicated by the

challenged reassignment.

      The Union also argues the reassignment of Lead Operator work violated

several provisions of Article 20, which it characterizes generally as “provid[ing]

what the lead operators do and how the vacancies are filled.” Aplt. Br. at 9. But




                                        -13-
the Union does not make specific arguments as to how each provision was

violated by the reassignment. 2

      Article 20-1 states: “Providing an employee has the necessary

qualifications, seniority rating . . . shall be the determining factor in bidding and

bumping. Ranking number in a progression unit will be the determining factor

for promoting or demoting within a progression unit or demoting out of a

progression unit.” App. at 272. In other words, Article 20-1 provides that

seniority is to be the primary factor in advancement. We find this provision

imposes no limit on ConocoPhillips’s ability to reassign work.

      Article 20-4 provides, in pertinent part: “Filling a permanent vacancy in

the Lead Operator classification shall be by the selection/qualification process.

All other permanent vacancies within a progression unit will be filled by the

employees in the progression unit moving up, leaving the bottom number in the

progression unit vacant.” Id. The Union does not argue that a vacant position has

been improperly filled, or explain how the reassignment of Lead Operator work

offends Article 20-4. We also find this provision is not relevant to the

reassignment of work.




      2
        Before the district court, the Union made specific arguments that the
elimination of the Lead Operator position violated each of these provisions. But
since we have found that elimination-of-jobs grievances are exempted absolutely
by Article 11, we do not address these arguments.

                                         -14-
      Article 20-5 addresses ConocoPhillips’s ability to prevent an employee

from advancing further according to seniority due to physical inability:

      No employee will be frozen unless the Company doctor determines
      he is physically unable to advance to the next higher classification.
      The period of time he is frozen will be limited to the time he is
      physically unable to advance. No more than one employee can be
      frozen in any classification. Employees promoting around a frozen
      employee shall also demote around him for the first calendar year.
      After one calendar year, if the employee remains frozen then he is
      subject to once around, always around, for any employee who
      promotes around him according to paragraph 20-12.

Id. at 273. Because this provision has no language limiting assignment in any

way, we find it is not implicated by the reassignment of the Lead Operator work.

      Article 20-6 states: “It is recognized that employees must meet all

qualifications of their job as a condition of employment,” and sets out the

guidelines for removing an employee who is not qualified to perform a job. Id.

The Union does not argue that any employee was removed, or otherwise explain

how ConocoPhillips’s actions violated this provision. We find that Article 20-6

does not limit the reassignment of work.

      Article 20-15 discusses in detail the rules for advancement where an

employee is demoted out of a position as a result of reductions in the unit. Id. at

275–76. We agree with the district court this provision contains no language

restricting ConocoPhillips’s ability to reassign work.

      Article 21-9 provides:




                                         -15-
        If the work of a higher-paid classification is temporarily required for
        4 or more hours of any employee within the bargaining unit during a
        regular 8-hour day, evening, or night shift, he shall receive the wages
        of the higher-paid classification for all hours worked in that shift.
        Overtime shall be paid for at rate of job worked.

Id. at 277 (emphasis added). The Union suggests ConocoPhillips violated Article

21-9 by reassigning Lead Operator work without making the mandatory increased

payment to certain employees. But, as ConocoPhillips points out, Article 21-9

applies only to temporary reassignments. There is nothing in the record to

suggest the reassignment of Lead Operator duties to Unit Operators and APSs is

temporary. And, in fact, the Union does not make this contention. Thus, we

conclude Article 21-9 is not implicated by the reassignment of Lead Operator

work.

        Finally, Appendix A is a rate schedule for Union jobs in the refinery. This

provision explains: “This Appendix is the agreed-upon base rates of pay for the

listed jobs as they existed at the time of the Agreement. It is not an agreement on

the part of ConocoPhillips that the listed jobs will not be changed, combined, or

eliminated.” Id. at 291–92. The Union argued below the negotiated duties of the

Lead Operator are fixed by Appendix A. But, as the district court noted, because

this provision explicitly states the Appendix is not an agreement that the listed

jobs will not be changed, this argument is unavailing. We therefore conclude

Appendix A also does not narrow ConocoPhillips’s right to reassign work.




                                          -16-
      To summarize, none of these provisions of the CBA are implicated by the

Union’s Lead Operator grievances.

                                           2.

      As to Article 21-1, however, the Union’s contention has merit. Article 21-1

provides, in relevant part:

      Work peculiar to a classification shall be performed by employees
      assigned to that classification within the bargaining unit with the
      exception that the Company reserves the right to assign work
      without compromising safety to qualified employees regularly
      assigned to other classifications within the bargaining unit for
      efficient, productive and profitable operations of the plant.

Id. at 277. The Union contends the reassignment of work violated Article 21-1,

because work peculiar to the Lead Operator classification is now being performed

by the Unit Operator and APS classifications. In response, ConocoPhillips

acknowledges that it is “generally prohibited” from reassigning the work of one

classification to another. But, it argues, Article 21-1 limits reassignment only

where the classification that originally performed the work still exists, as work

cannot be “peculiar to” a classification that does not exist. Under this

interpretation, Article 21-1 does not apply where ConocoPhillips has eliminated

the original classification, as it did here.

      We find the language of this provision arguably restricts ConocoPhillips’s

ability to reassign work previously performed by one classification to another.

Such a reassignment is only permitted where it does not compromise safety, it is


                                           -17-
made to qualified employees, and it is made to employees within the bargaining

unit. The question of whether the reassignment of Lead Operator work complied

with these limitations is for the arbitrator to resolve.

       ConocoPhillips’s narrow interpretation of this restriction is not

unreasonable, but it is not required by the language of Article 21-1. It is not clear

whether the provision’s purpose is to protect the old classification from being

stripped of duties (which would favor ConocoPhillips’s interpretation, as there

would be no value in protecting a classification that no longer exists) or to protect

the new classification from being burdened with additional duties (which would

favor a broader interpretation, as the burden of increased responsibility would be

the same, regardless of whether the original classification was eliminated).

Because the reassignment of the Lead Operator duties at least arguably implicates

Article 21-1, we find this grievance is arbitrable.

      In sum, we conclude Article 11 exempts every Lead Operator grievance

from arbitration except the claim that the reassignment of Lead Operator duties

violated Article 21-1 of the CBA.

      2. Still Cleaner Unit

      The Union also filed grievances based on ConocoPhillips’s decision to

(1) eliminate three positions in the Still Cleaner unit and replace them with two

general Still Cleaners and (2) reassign some portion of the still cleanout

preparation work to the newly created Drum Operator position in the

                                          -18-
Coker/Combo unit. On appeal, the Union urges these actions violated Articles

21-1 and 36 of the CBA. 3

      Elimination of the Three Still Cleaner Positions

      As discussed above, a grievance arising from ConocoPhillips’s right to

eliminate a position is exempt from arbitration under Article 11. The Still

Cleaner grievances regarding the elimination of the original three positions are

therefore not arbitrable.

      Reassignment of the Still Cleaner Work

      For the same reasons addressed above, Article 21-1 arguably places a limit

on ConocoPhillips’s ability to reassign work formerly performed by one

classification to another. Thus, the grievance that the reassignment of Still

Cleaner work to the Drum Operator violated Article 21-1 is arbitrable.

      Finally, we turn to the Union’s claim that the reassignment of Still Cleaner

work to the Drum Operator position is contrary to Article 36. Article 36

addresses the payment and hours of employees who clean the stills. Specifically,

Article 36 states, “Cleaning of the coke still equipment shall be paid for on a

piecework basis . . . .” App. at 287. Article 36-2 continues that “[e]arnings of an

entire crew per cleanout will be distributed among the crew in the same ratio as

their base hourly rates bear to each other.” Id. And Article 36-3 requires that

      3
         The Union also asserts these actions violated Article 21-4. Again,
however, we do not consider this claim because it was not properly raised before
the district court. Tele-Commc’ns, Inc., 104 F.3d at 1233.

                                        -19-
overtime be paid “for each hour worked over 8 in a given cleanout” and “for each

hour worked over 40 in a given workweek.” Id. at 288. Article 36 also mandates

that “hours shall not exceed 40 a week,” and Article 36-1 explains that

“[w]henever it appears that a delay will exceed 2 hours, the crew may be notified

that they are not needed; and they may leave the premises until called again.” Id.

at 287.

      It is undisputed the Drum Operator position does not comply with these

requirements. The Union contends the reassignment of Still Cleaner work to an

employee who is not paid or employed in accordance with Article 36 is a

violation of the CBA. ConocoPhillips, echoing the findings of the district court,

responds that Article 36 applies only to workers employed in the Still Cleaning

unit. Because the Drum Operator is located in the Coker/Combo unit,

ConocoPhillips argues, Article 36 is not operative.

      The text of Article 36 does not support ConocoPhillips’s interpretation. By

its own terms, Article 36 regulates payment and hours for “[c]leaning of the coke

still equipment.” Id. Article 36-9 defines still cleaning duties as including “the

actual preparation of the equipment for cleaning.” Id. at 288. Because

ConocoPhillips concedes the Drum Operator performs “cleanout preparation

work,” which includes “isolating energy before the coke equipment can be

properly disassembled,” Aple. Br. at 8, Article 36 arguably applies to the Drum




                                         -20-
Operators. Thus, the Union’s grievance that the reassignment of Still Cleaner

work to the Drum Operators violated Article 36 is arbitrable.

      To conclude, the Union’s Still Cleaner reassignment grievances under

Articles 21-1 and 36 are not exempted from arbitration by Article 11 of the CBA.

      3. The Tester Position

      The Union’s final grievances relate to the elimination of one Tester

position and the reassignment of this position’s work as a violation of various

provisions of the CBA.

      Elimination of the Tester Position

      As discussed above, Article 11 expressly exempts from arbitration any

grievance arising from management’s elimination of a position. For this reason,

grievances regarding the elimination of the Tester position are not arbitrable

under the CBA.

      Reassignment of the Tester Duties

      The parties disagree as to whether the elimination of the Tester position

resulted in a reassignment of the duties previously performed by that position.

The district court found no reassignment had taken place, crediting

ConocoPhillips’s claim that improved efficiencies made reassignment of these

duties unnecessary. But the Union argues the evidence in the record shows a

genuine issue of fact as to whether there was a reassignment. In support, the

Union cites the deposition testimony of a Union representative: “And we didn’t

                                        -21-
feel like [] the [Tester] position should be eliminated and the work divided among

the other lab people. . . . and [ConocoPhillips] refused to acknowledge that their

work wasn’t going away; it was just being reassigned to another person.” App. at

324–35.

      But the Union did not rely on this evidence in resisting summary judgment

below. Even if the testimony had probative value (which is doubtful given its

conclusory nature), the Union cannot now rely on it on appeal. Once

ConocoPhillips pointed out the deficiency in the Union’s case in district court, it

was the Union’s burden to show the existence of a genuine issue of fact by

pointing to affidavits, depositions, and exhibits in the record. Mitchell v. City of

Moore, Oklahoma, 218 F.3d 1190, 1199 (10th Cir. 2000). “Where the burden to

present such specific facts was not adequately met below, we will not reverse a

district court for failing to uncover them itself.” Id. (quotations and alterations

omitted).

                                  III. Conclusion

      For the foregoing reasons, we find the Union’s grievances that the

reassignment of Lead Operator work violated Article 21-1 and the reassignment

of Still Cleaner work violated Articles 21-1 and 36 are arbitrable under the CBA.




                                         -22-
Accordingly, we AFFIRM in part and REVERSE in part the judgment of the

district court.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




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