
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1066                   BROWNING FERRIS INDUSTRIES OF PUERTO RICO, INC.,                                Plaintiff, Appellant.                                          v.                           UNION DE TRONQUISTAS, LOCAL 901,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                         and Pettine,* Senior District Judge.                                       _____________________                                                                                      ____________________             Jorge Rodriguez  Micheo, with  whom Goldman, Antonetti  & Cordova             _______________________             _____________________________        was on brief for appellant.             Miguel Cabrera Figueroa for appellee.             _______________________                                                                                      ____________________                                    July 11, 1994                                                                                      ____________________                                    ____________________             *Of the District of Rhode Island, sitting by designation.                    CYR,   Circuit  Judge.     Plaintiff   Browning  Ferris                    CYR,   Circuit  Judge.                           ______________          Industries of  Puerto Rico,  Inc. (BFI) appeals  from a  district          court order dismissing its action to stay arbitration proceedings          brought  by defendant-appellee  Union De  Tronquistas, Local  901          (Union), relating  to BFI's discharge of  certain Union employees          for  participating  in  an  alleged slowdown  prohibited  by  the          Collective  Bargaining  Agreement  (CBA).    The  district  court          ultimately  ruled that  the  dispute was  subject to  arbitration          because no slowdown  occurred.  We affirm on the  ground that the          underlying contract dispute addressed  by the district court must          be submitted to arbitration in accordance with the CBA.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    BFI  operates  a  waste  disposal facility  in  Cata o,          Puerto Rico.   The  Union represents  its drivers,  mechanics and          utility  workers.    After   BFI  dismissed  four  employees  for          allegedly   participating  in  a  "slowdown"  prohibited  by  CBA            15.01,1  the  Union  initiated grievance  proceedings  on their                                        ____________________               1CBA   15.01 provides:                    Neither  the  Union  nor   employees  covered                    herein  shall at  any  time, including  lunch                    hour, call, cause, sanction,  participate in,                    permit, authorize, honor, instigate, support,                    assist  or  condone   any  strike,   sympathy                    strike, work stoppage, picketing, slowdown or                    other concerted and/or intentional  effort to                                          2          behalf pursuant to the contract arbitration  clause, CBA   11.01.          BFI in turn commenced the present action to stay arbitration, see                                                                        ___          Labor  Management Relations  Act    301(a),  29 U.S.C.    185(a),          claiming  that  CBA    15.02   expressly  exempts  BFI's  adverse          employment   action  from  contract   grievance  and  arbitration          procedures.                      BFI promptly  moved for summary judgment  on the ground          that the discharged employees had engaged in an action prohibited          by CBA   15.01, but the district court ruled that a genuine issue          of material fact remained as to whether the employees had engaged          in a "slowdown,"  and referred the matter to  a magistrate-judge.          Following   an   evidentiary   hearing,    the   magistrate-judge          recommended that the district  court find that BFI had  failed to          prove a "slowdown,"  and further recommended that  the dispute be          submitted  to  arbitration.    The  district  court  adopted  the          magistrate-judge's  report and  recommendation over  BFI's timely          objection, and dismissed the action.   On appeal, BFI  challenges          the district court order  directing that the contract dispute  be          submitted to arbitration.                                         ____________________                    interfere with  production, such as,  but not                    limited  to, an  extension  of lunch  or rest                    periods or meetings during working hours.                                          3                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Whether a collective bargaining agreement  requires the          parties to arbitrate a particular dispute is a matter of contract          interpretation  entrusted in  the first  instance to  trial court          determination, AT&T  Technologies   v. Commun. Workers,  475 U.S.                         __________________      _______________          643, 649 (1986); Bechtel Constr.,  Inc. v. Laborers' Int'l Union,                           ______________________    _____________________          812 F.2d 750, 752 (1st Cir. 1987), subject to de novo review, see                                                        __ ____         ___          Local 149  of Am. Fed'n of Tech. Eng'rs v. General Elec. Co., 250          _______________________________________    _________________          F.2d 922, 929 (1st Cir. 1957), cert. denied, 356 U.S. 938 (1958).                                         _____ ______          We need not address the sufficiency vel non of the district court                                              ___ ___          finding  that  BFI failed  to prove  a  prohibited slowdown     a          matter on  which we take  no view     since that dispute  must be          submitted to arbitration notwithstanding CBA   15.02.                      There is nothing ambiguous about section 15.02:                     Any  employee engaging in  any such action as                    ___  ________ ________ __  ___      ______                    set forth  in Section 15.01 shall  be subject                    ___ _____  __ _______ _____ _____  __ _______                    to  disciplinary action,  including immediate                    __  ____________ ______                    discharge,  at  the  sole discretion  of  the                    Company and any  action taken by  the Company                            ___ ___  ______ _____ __  ___ _______                    shall  not  be subject  to the  grievance and                    _____  ___  __ _______  __ ___  _________ ___                    arbitration  procedure contained  in [Section                    ___________                    11.01].           (Emphasis  added).   Its  plain language,  read  together in  its          entirety, see Commercial Union  Ins. Co. v. Walbrook Ins.  Co., 7                    ___ __________________________    __________________          F.3d 1047, 1051  n.6 (1st  Cir. 1993), adverts  to two  potential          issues  between  the  contracting  parties.    The  first  clause          conditions the employer's right to take disciplinary action under                                          4          section 15.02 on the occurrence of  an employee action prohibited          by section 15.01;  the last clause  makes it clear that  the only          employer action exempted from grievance and arbitration under CBA            11.01 is  a disciplinary  action  against an  employee who  has          violated section 15.01.                      The  interpretation  advanced  by  BFI  disregards  the          entire first clause in section 15.02, see Jimenez v. Peninsular &                                                ___ _______    ____________          Oriental Steam Nav. Co.,  974 F.2d 221, 223 (1st  Cir. 1992) ("In          _______________________          construing  contract  language, we  endeavor  to  render no  term          meaningless.")  (citing cases),  which plainly  preconditions the          employer's  unilateral  right  to  discipline an  employee  on  a          determination  that  the  employee  has violated  section  15.01.          Next,  it gratuitously  assumes that the  last clause  in section                    ____________  _______          15.02  vests   the  employer,  sub   silentio,  with   unfettered                                         ___   ________          discretion to  determine whether  the  employee violated  section          15.01, e.g.,  by participating in a  prohibited slowdown, without                 ____          any  right of  recourse to  grievance or  arbitration procedures.          But see Cofman v. Acton Corp.,  958 F.2d 494, 497 (1st Cir. 1992)          ___ ___ _______   ___________          (applying "inclusio unius est exclusio alterius").                       ________ _____ ___ ________ ________                    The  interpretation urged by  BFI contravenes  not only          the  governing   rules  of  contract   construction,  see,  e.g.,                                                                ___   ____          Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment &          _________________________________    ____________________________          Allied Indus. Fund, 967 F.2d 688, 694 (1st Cir. 1992) (construing          __________________          CBA in  accordance with general  contract law),  but the  Supreme          Court's admonition that "where  the [CBA] contains an arbitration                                          5          clause, there is a presumption of arbitrability in the sense that          '[a]n 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.  Doubts should be resolved in favor          of  coverage.'"   AT&T  Technologies, 475  U.S.  at 650  (quoting                            __________________          Steelworkers v. Warrior  & Gulf  Nav. Co., 363  U.S. 574,  582-83          ____________    _________________________          (1960)).   In this case, we  could not say with  any assurance at                                                           ___          all  that  section  15.02  permits  the  employer  to  determine,          unilaterally  and  conclusively,  that  section  15.01  has  been          violated by the employee.                      Finally, the interpretation proposed by  BFI would lead          to the absurd result that any employee could be discharged at any                                    ___                                 ___          time,  with no  right  of recourse  to  grievance or  arbitration                      __          procedures, simply  on the employer's "say-so"  that the employee          had  engaged  in   conduct  prohibited  by  section  15.01.    An          interpretation so at odds with the role  of collective bargaining          in labor-management  relations would  give us serious  pause even          assuming  some  plausible   textual  basis   in  the   collective          bargaining  agreement.   The  utter  absence  of textual  support          agreeably precludes any interpretive quandary.                     For the foregoing reasons,  the district court order is          affirmed.          affirmed          ________                                          6
