                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              April 26, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       ____________________

                           No. 03-10963

                         Summary Calendar
                       ____________________


     COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO

                                    Plaintiff - Appellant

          v.

     TYCO POWER SYSTEMS INC

                                    Defendant - Appellee


_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:02-CV-1194-D
_________________________________________________________________

Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.

PER CURIAM:*

     A union filed suit in the district court, seeking to compel

arbitration of a grievance stemming from a plant closure.       The

district court granted the employer’s motion for summary

judgment, and the union appeals.   Agreeing with the district



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
court that the parties’ dispute is expressly excluded from their

agreement to arbitrate, we affirm.

                           I. BACKGROUND

     Communications Workers of America (“CWA” or “the union”) is

the exclusive representative of certain employees who were

formerly employed at the Tyco Power Systems (“Power Systems” or

“the company”) plant in Mesquite, Texas.   Power Systems bought

the Mesquite plant from Lucent Technologies in December 2000 and

assumed the collective bargaining agreement (“Agreement”) that

had governed relations between Lucent and the union.   Article 7

of the Agreement provides that most (but not all) disputes

between the parties are subject to arbitration.   Relevantly for

purposes of this appeal, Article 7 expressly excludes from

arbitration: (1) those disputes that “involve[] a provision of

this [Agreement] which specifies that it is not subject to

arbitration” and (2) disputes that concern matters “within the

judgment and discretion of the company.”

     In the fall of 2001, Power Systems informed CWA that the

company intended to close the Mesquite plant.   The union and the

company engaged in bargaining over benefits that the workers

would receive.   Under the “Facility Closing Plan” described in

Article 19 of the Agreement, Power Systems was required to give

the employees certain benefits, notably severance pay.   Article




                                 2
19 also specifically provides that neither the Facility Closing

Plan nor its administration is subject to arbitration.2

     In addition to securing the benefits required under the

Facility Closing Plan, the union’s representatives also sought

benefits under another portion of the Agreement, the Lucent

Career Transition Option Program (“LCTOP”).    The LCTOP provision

states that the company “may” provide laid-off employees with

certain benefits, including extended compensation, continuation

of fringe benefits, and early pension eligibility.    Power Systems

refused to provide LCTOP benefits to the Mesquite employees.

     In response to the company’s decision, a CWA representative

filed a grievance charging that the company had violated its

duties under the Agreement.   In the space on the grievance form

that provides an opportunity to summarize the grievance, the

representative wrote “Plant Closure/Surplus.”    In the space that

asks which contractual provisions are at issue, the

representative listed the articles involving severance pay under

the Facility Closing Plan and several other articles of the

Agreement, ten articles in all.   Apparently taking the view that

the grievance was simply concerned with the dispute over LCTOP

benefits, Power Systems denied the grievance on the ground that

LCTOP benefits are not mandatory.     The union then informed Power


     2
          There are a few aspects of the Facility Closing Plan
that are not excluded from arbitration, but CWA does not contend
that they are relevant here.

                                  3
Systems of its intent to arbitrate the dispute, but Power Systems

responded that the dispute was excluded from arbitration under

the Agreement.

       CWA filed suit in the district court, seeking an order

compelling Power Systems to arbitrate the parties’ dispute.3

Both parties moved for summary judgment.           The district court

granted summary judgment in favor of Power Systems.           The court

concluded that the Agreement expressly excludes the parties’

dispute from arbitration both because the dispute involves the

administration of the Facility Closing Plan and because LCTOP

benefits are a matter within the company’s discretion.

       The union now timely appeals.

                                    II. ANALYSIS

       We review the district court’s summary judgment decision

denying CWA’s request to compel arbitration de novo.           See Gen.

Warehousemen & Helpers Union Local 767 v. Albertson’s

Distribution, Inc., 331 F.3d 485, 487 (5th Cir. 2003).           Summary

judgment is proper when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law.       FED. R. CIV. P. 56(C).

       Arbitration is a matter of contract, and the question

whether the parties have agreed to arbitrate a dispute is


       3
          The suit was based on federal labor relations law, 29
U.S.C. § 301, and accordingly invoked the district court’s
federal question jurisdiction.

                                         4
ordinarily for the court to decide.    AT&T Techs., Inc. v.

Communications Workers of Am., 475 U.S. 643, 648-49 (1986).

When, as in this case, the question is whether a certain dispute

falls within the parties’ arbitration clause, doubts are resolved

in favor of arbitration.   “An order to 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.”       Id. at

650 (quoting United Steelworkers of Am. v. Warrior & Gulf Navig.

Co., 363 U.S. 574, 582-83 (1960)); see also Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).

     The district court concluded that the parties’ dispute

clearly fell within the Agreement’s exclusions to the duty to

arbitrate.   According to the district court, the subject matter

of the grievance plainly involved the company’s refusal to

provide LCTOP benefits in conjunction with the plant closure.

In reaching its decision that this grievance was excluded from

arbitration, the district court relied on both the specific

exclusion for matters pertaining to the administration of the

Facility Closing Plan and the specific exclusion for matters that

are within the company’s discretion.   The district court read the

Agreement as treating LCTOP benefits as discretionary.4

     4
          CWA has argued on appeal that the district court
improperly strayed into the merits of the grievance in making its
rulings on arbitrability, particularly in concluding that LCTOP
benefits are within the company’s discretion. Cf. United

                                 5
     The union’s primary argument on appeal is that the district

court erred by failing to take into account that the grievance

also involved complaints that were unrelated to the plant closure

and surplus issues.   In particular, CWA directs our attention to

Articles 1 and 2 of the Agreement, which the grievance form

listed as two of the ten different articles that Power Systems

was allegedly violating.   Article 1 provides that Power Systems

recognizes CWA as the exclusive representative of covered

employees.   Article 2 provides in pertinent part that neither the

union nor the company shall discriminate on the basis of race,

age, sex, or other specified statuses.   CWA points out that the

Agreement nowhere exempts such disputes from the Agreement’s

general arbitration clause.

     We are unpersuaded by CWA’s argument.   First, as to Article

1, CWA’s brief suggests that the only way that Power Systems

allegedly violated its duty to recognize the union was by failing

to provide LCTOP benefits in conjunction with the closing of the

plant.   Reference to the undisputed evidence confirms this.   The

union’s representative was asked during her deposition about the


Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960).
CWA is incorrect; the district court did not overstep the bounds
of the inquiry that was before it. Since it was the district
court’s duty to determine whether the dispute is subject to
arbitration, and since the Agreement excludes from arbitration
those matters that are within the company’s discretion, the
district court was required to decide whether LCTOP is
discretionary. Any overlap between merits issues and the
question of arbitrability is due to the express language of the
Agreement.

                                 6
basis for the union’s failure-to-recognize complaint.    She

answered that “by not recognizing the contract obligations, they

were failing to recognize us as the collective bargaining agent.”

Shortly thereafter came the following exchange:

     Q:     Has there ever been a denial by the company that
            [CWA] is the exclusive representative of the
            employees . . . ?

     A:     No.   I don’t believe that there has been.

The record shows that, in this case, the union’s failure-to-

recognize complaint has no independent substance to it.    Rather,

it is merely being used as a vehicle to obtain arbitration of the

company’s failure to pay certain benefits.

     The situation is similar with regard to CWA’s reliance on

Article 2.    CWA’s brief does not spell out the nature of the

Article 2 complaint, but based on the motions submitted in the

district court, the gravamen of the complaint is that Power

Systems discriminated on the basis of age.     The way in which the

company is said to have discriminated, however, is by failing to

provide the early pension eligibility that is one component of

the LCTOP benefit.     The evidence shows that the company did not

provide any LCTOP benefits to any workers, young or old.

Therefore, although phrased in terms of Article 2, in actuality

the substance of the complaint can only be construed as (1) a

complaint about the Facility Closing Plan (namely that it should

include additional benefits) and/or (2) a complaint regarding

LCTOP.    In either event, arbitration is unavailable.   Complaints

                                   7
about the administration of the Facility Closing Plan are

expressly exempted from arbitration.    Regarding arbitration of

LCTOP benefits, the primary basis for the district court’s

decision was that the LCTOP provision was discretionary and

therefore excluded from the duty to arbitrate.    Nowhere in its

brief has CWA offered any argument against that holding.

     We note that this would be a different case if the grievance

did blend together complaints that included both arbitrable and

non-arbitrable elements.    Such a situation would be presented,

for example, if Power Systems had administered the Facility

Closing Plan--a subject matter that is exempt from arbitration--

in a manner that allegedly discriminated on a proscribed basis,

such as by giving the required termination benefits to workers of

one race but not another.    In that sort of mixed case, in which

an otherwise clearly arbitrable violation occurs in connection

with a non-arbitrable event, the policy in favor of arbitration

might prevail and require the court to compel arbitration of the

dispute.   But despite CWA’s efforts to characterize this

grievance as presenting just such a scenario, here the complaints

under Articles 1 and 2 have no independent substance.    On the

undisputed evidence, CWA is only seeking to use those labels to

avoid the Agreement’s express limitations on the duty to

arbitrate.   That is not permitted.    See Contra Costa Legal

Assistance Workers v. Contra Costa Legal Servs. Found., 878 F.2d

329, 330 (9th Cir. 1989).    In reaching this conclusion, we rely

                                  8
on CWA’s own statements regarding the nature of its complaints

under Articles 1 and 2.

                          III. CONCLUSION

     For the foregoing reasons, the district court’s judgment is

AFFIRMED.




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