UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GENERAL TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS LOCAL
UNION NO. 697, a/w International
Brotherhood of Teamsters, AFL-
CIO,
                                                                  No. 95-1082
Plaintiff-Appellee,

v.

PREMIER CONCRETE PRODUCTS,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-93-141-5)

Argued: October 31, 1995

Decided: March 29, 1996

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ronald L. Mason, EMENS, KEGLER, BROWN, HILL
& RITTER, Columbus, Ohio, for Appellant. Robert Alan Eberle,
JUBELIRER, PASS & INTRIERI, P.C., Pittsburgh, Pennsylvania, for
Appellee. ON BRIEF: Christopher J. Weber, EMENS, KEGLER,
BROWN, HILL & RITTER, Columbus, Ohio; Robert J. D'Anni-
balle, Jr., ALPERT, D'ANNIBALLE & VISNIC, Weirton, West Vir-
ginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is an appeal from the district court's order compelling arbitra-
tion between General Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 697, a/w International Brotherhood of
Teamsters, AFL-CIO ("Local 697" or the "union") and Premier Con-
crete Products, Inc. ("Premier" or the "company"). The district court
determined that the dispute between the parties was over whether Pre-
mier subcontracted work in violation of the collective bargaining
agreement. The court held that the dispute was arbitrable. Premier
appeals these conclusions, and we affirm.

I.

The appellant, Premier, distributes and sells concrete products.
From April 1990 until mid-April 1992, Premier produced ready-mix
concrete at plants in Bellaire and Mingo Junction, Ohio. The compa-
ny's ready-mix division employed approximately 19 employees, most
of whom were ready-mix drivers. They were represented by the
appellee, Local 697.

Premier and Local 697 were parties to a collective bargaining
agreement in effect from May 1, 1990 to April 30, 1993. The bargain-
ing unit included Premier's ready-mix division employees. The agree-
ment contained a grievance procedure as the exclusive dispute
resolution mechanism for all disputes. According to§ 4.2, the griev-

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ance procedure applied whenever "differences [arose] between the
employer and the union as to the meaning and application of any of
the provisions of this agreement or [whenever] differences [arose]
over matters not specifically referred to in this agreement." The final
step of the grievance procedure was binding arbitration.

In April 1992, while the collective bargaining agreement was in
effect, Premier laid off all employees in the ready-mix bargaining
unit. Those employees have remained laid off since then. The com-
pany says that it closed the ready-mix operation because of its inabil-
ity to compete.

In June 1992 some ready-mix employees notified Ray Bauer, Local
697 secretary-treasurer/business agent, that some Premier ready-mix
trucks were being operated with Weirton Ice & Coal Supply Com-
pany signs placed over the Premier markings. They also told Bauer
that the trucks were providing concrete to jobs which had been sup-
plied with concrete produced by Premier's ready-mix employees prior
to the April 1992 layoffs. Premier claims that it had simply assigned
its existing contracts to Weirton Ice & Coal. Premier also maintains
that it did not lease any of its equipment to Weirton Ice & Coal.

Bauer (on behalf of the union) filed a grievance with Premier,
alleging a violation of § 8.14 of the collective bargaining agreement.
The grievance stated:

          The Company is in violation of Article 8, Section 8.14, by
          subcontracting work through Weirton Ice & Coal Company
          which has always been performed by bargaining unit
          employees in the Ready Mix Division, at a time when the
          Company's trucks were not in use and when available and
          qualified employees were on lay-off. This violation is con-
          tinuing.

Section 8.14 of the collective bargaining agreement provides:

          No outside trucking will be hired until either of the two (2)
          following conditions exist: 1. The employer's suitable and
          available trucks are in use. 2. All available and qualified
          employees are working.

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Premier refused to arbitrate. On July 20, 1993, the union filed this
action to compel arbitration. Both the union and Premier filed
motions for summary judgment, and the district court granted the
union's motion, compelling the parties to arbitrate. Premier appeals.

II.

We review the district court's grant of summary judgment de novo.
Cumberland Typographical Union 244 v. The Times & Alleganian
Co., 943 F.2d 401, 407 (4th Cir. 1991). A dispute is arbitrable if the
parties contracted to submit the grievance to arbitration. United Steel
Workers of America v. Warrior & Gulf Navigation Co. , 363 U.S. 574,
582 (1960). Whether a dispute is arbitrable is a question of contract
interpretation for the court. Id. The role of the court is "confined to
ascertaining whether the party seeking arbitration is making a claim
which on its face is governed by the contract." United Steelworkers
of America v. American Mfg. Co., 363 U.S. 564, 568 (1960). The
court may not consider the merits of the grievance while determining
whether a dispute is arbitrable. Id. Even claims that the court might
deem nonmeritorious must be submitted to arbitration if the parties
have agreed that the dispute was arbitrable. Id. at 567-68. Finally, if
the contract contains an arbitration clause, a presumption of arbitra-
bility arises. The court should not decline to order arbitration "unless
it may be said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted dispute."
Warrior & Gulf Navigation, 363 U.S. at 582-83.

Under these principles, the district court correctly concluded that
the subcontracting grievance was arbitrable. The collective bargaining
agreement contains a broad arbitration clause:

          Should differences arise between the employer and the
          union as to the meaning and application of any of the provi-
          sions of this agreement or should differences arise over mat-
          ters not specifically referred to in this agreement, there shall
          be no suspension of work on account of such differences,
          but an earnest effort shall be made to settle such differences
          immediately:

***

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          In the event a cause is deadlocked . . . this case shall be
          referred to the American Arbitration Association for settle-
          ment. The decision resulting from the arbitration will be
          final and binding upon the parties. . . .

Local 697 expressly alleged that Premier violated§ 8.14 of the collec-
tive bargaining agreement by subcontracting with Weirton Ice & Coal
while ready-mix employees were laid off. We think the allegation is
a "difference[ ] between the employer and the union as to the meaning
and application of [one] of the provisions of the" collective bargain-
ing agreement. Thus, we cannot say "with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the
asserted dispute." Warrior & Gulf Navigation , 363 U.S. at 582-83.

Premier insists, however, that to prevail on summary judgment, the
union must produce some evidence that the company was actually
subcontracting. We disagree. Local 697's grievance made the specific
allegation that Premier was subcontracting work to Weirton Ice &
Coal, in violation of the collective bargaining agreement. Whether
Premier was actually subcontracting is a question addressing the mer-
its of the grievance. In making arbitrability determinations, "[t]he
courts . . . have no business weighing the merits of the grievance."
American Mfg., 363 U.S. at 568.

Next, Premier argues that we cannot take the union's asserted
grievance at face value, but instead we must unveil the "underlying
dispute" and determine whether it is arbitrable. Premier relies on
International Union United Automobile, Aerospace and Agric. Imple-
ment Workers of America, UAW v. Lester Eng'g Co., 718 F.2d 818
(6th Cir. 1983); Retail, Wholesale and Dep't Store Union Local 1034
AFL-CIO v. Doxsee Food Corp., 650 F.Supp. 861 (D. Del. 1986); and
District No. 8, Int'l Ass'n of Machinists and Aerospace Workers,
AFL-CIO v. Boyar-Schultz Corp., No. 85C7442, Slip Op. (N.D. Ill.
April 16, 1986). In each of these cases, the union sought to enjoin the
employer from closing its operation pending arbitration. Premier
argues that in each case the union grievance was purportedly over
subcontracting, but nonetheless each court first identified "the under-
lying dispute." See Lester, 718 F.2d at 823. These courts did deter-
mine that the underlying dispute was in fact over the employer's
decision to close an operation, a nonarbitrable subject. Thus, Premier

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claims that the underlying dispute in this case is over Premier's deci-
sion to shut down the ready-mix operation, a dispute that is not arbi-
trable.

We disagree with Premier's analysis for two reasons. First, we are
"confined to ascertaining whether the party seeking arbitration is
making a claim which on its face is" arbitrable under the collective
bargaining agreement. American Mfg., 363 U.S. at 568 (emphasis
added). Here, the grievance alleges on its face that Premier violated
§ 8.14 of the collective bargaining agreement.

Second, the cases (from other circuits) on which Premier relies are
inapposite. To begin with, each case involved an attempt to enjoin the
employer from closing an on-going operation. Here, we simply have
an action to compel arbitration. Moreover, the cases are factually dis-
tinguishable. In Lester and Doxsee, the union alleged that the plant
closing violated the no-subcontracting provision of the collective bar-
gaining agreement. Lester, 718 F.2d at 819; Doxsee, 650 F. Supp. at
863. Thus, on its face, the union grievance was over the plant closing.
In Boyar-Schultz, the union's claim on its face was that a proposed
plant shutdown would violate the collective bargaining agreement.
The agreement did not have a no-subcontracting provision. Boyar-
Schultz at 2. By contrast, in the present case the union neither seeks
to enjoin the closing of an ongoing operation nor alleges anything
about Premier's decision to close the ready-mix operation. Rather, the
grievance states that Premier's alleged subcontracting -- discovered
a month after the operation's closing -- violated the subcontracting
provision of the collective bargaining agreement.

Here, the district court was correct to review the language of the
grievance and to determine that "it alleges a violation which is within
the scope of matters subject to arbitration under the [collective bar-
gaining] agreement." Accordingly, we reject Premier's arguments and
affirm the judgment of the district court.

AFFIRMED

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