     Case: 11-20883     Document: 00511889684         Page: 1     Date Filed: 06/18/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 18, 2012

                                     No. 11–20883                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL
UNION NO. 716, AFL-CIO,

                                           Plaintiff - Appellee

v.

ALBEMARLE CORPORATION, INC.,

                                           Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-5063


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Albemarle Corporation (“Albemarle”) appeals the
district court’s grant of summary judgment in favor of the Plaintiff-Appellee
International Brotherhood of Electrical Workers, Local Union No. 716, AFL-CIO
(“the Union”). We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11–20883

                                        I
      Albemarle manufactures specialty chemicals and operates a chemical
plant in Pasadena, Texas. The Union is the collective bargaining representative
of Albemarle’s hourly employees assigned to perform electrical craft work at the
Pasadena plant. They are parties to a collective bargaining agreement (“CBA”),
which provides for arbitration in limited circumstances. Whether the CBA
entitles the Union to arbitration now is central to this dispute.
      Pursuant to the CBA, the Union filed a grievance, known as Grievance
10-02:
             We are grieving that Albemarle will not allow (15)
             minutes at the beginning of each regularly scheduled
             shift and (15) minutes at the end of each regularly
             scheduled shift to change clothes and go to the job
             location as per contract agreement Article XI - Hours
             and Overtime A.#4.

      This grievance was denied at all stages of internal review. Because
Albemarle refused to arbitrate the grievance, the Union sued Albemarle to
compel arbitration. The Union’s complaint makes clear that it intends to compel
arbitration of Grievance 10-02.
      Both parties moved for summary judgment. The Union claimed that
Albemarle’s refusal to submit Grievance 10-02 to arbitration violates the CBA.
Albemarle contended that the Union was attempting to arbitrate issues outside
the scope of Grievance 10-02 by recharacterizing the subject matter of the
grievance.
      The district court concluded that Grievance 10-02 fell within the scope of
the CBA’s arbitration clause and granted summary judgment for the Union. The
district court refused to address whether the Union was improperly using
Grievance 10-02 to raise new claims that had not passed through the internal
review process because the district court understood that to be a question for the


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                                   No. 11–20883

arbitrator to resolve under the terms of the CBA. Albemarle appeals, raising one
issue for this court’s review: whether the district court erred in compelling
arbitration.
      It is undisputed that the CBA allowed the Union to raise Grievance 10-02
and that the CBA thus entitles the Union to arbitration on that grievance. The
particular issue in dispute is whether Grievance 10-02 encompasses the claims
on which Union seeks to compel arbitration. A threshold issue this court must
address is whether that is a question for the court to decide—or for the
arbitrator to decide.
                                         II
      This court reviews an order compelling arbitration de novo.            Paper,
Allied-Indus. Chem. & Energy Workers Int’l Union, Local 4-12, 657 F.3d 272, 275
(5th Cir. 2011). This court recently explained that “[i]n determining whether the
grievances at issue are arbitrable, we must examine the scope of the parties’
agreement, as reflected in the arbitration clause.” Id. We are obligated “to
enforce the parties’ . . . agreement ‘according to its terms.’” Stolt-Nielsen S.A. v.
Animal Feeds Int’l Corp., 130 S. Ct 1758, 1772 n.8 (2010) (quoting Mastrobuono
v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58 (1995)).
      The CBA entitles the Union to arbitration on “grievances,” which include
“any dispute between Albemarle and the U[nion] involving the proper
application of, intepretation of, or compliance with this agreement.” CBA, Art.
VI(B).   The CBA does not, however, extend the right to arbitration to
“complaints,” which involve claims that do not allege “violation[s] of the
bargaining agreement.” Id. Article VI(B) of the CBA prohibits the parties from
attempting to arbitrate a “complaint” by disguising it as a “grievance”: “It is
agreed that no complaint shall be filed which falsely cites a contract violation
merely for the purpose of elevating the complaint to grievance status.” In
resolving the arbitration, “[t]he sole function of the arbitrator [under Article VII

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                                  No. 11–20883

of the CBA] shall be to determine whether Albemarle or the [Union] is correct
with reference to the proper application and interpretation of, or compliance
with, this agreement.”
      Albemarle claims that Paper, Allied-Industrial Chemical & Energy
Workers International Union, Local 4-12, 657 F.3d 272 (5th Cir. 2011) [PACE]
requires this court to look beyond the grievance to ascertain the actual issues the
Union hopes to raise in its arbitration. PACE is not so broad in scope. PACE
involved a CBA that limited arbitration to “good faith claim[s] by one party that
the other party has violated a written provision of the [CBA].” Id. at 276.
      In assessing the arbitrability of the grievance in PACE, this court
explained:
             If the collective bargaining agreement provided that
             “[a]n arbitrable grievance is a claim by one party that
             the other party has violated a written provision of this
             Agreement,” our task would be an easy one. The
             Union’s claim that Exxon–Mobil violated section 1131
             of the agreement when it engaged independent
             contractors would be arbitrable. But that is not what
             the agreement provides. The element of “good faith” is
             included in the arbitration clause. The words “good
             faith” are not surplusage and reflect that not every
             claim that the collective bargaining agreement has been
             violated is arbitrable.

Id. at 275–76.
      Here, the CBA requires that the Union meet certain procedural
requirements before it may arbitrate a claim and expressly leaves to the
arbitrator the question of “whether Albemarle or the [Union] is correct with
reference to the proper application and interpretation of, or compliance with,
this agreement.”     It is undisputed that the Union met the procedural
requirements to arbitrate. Further, the question of whether the Union is “falsely
cit[ing] a contract violation merely for the purpose of elevating the complaint to


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grievance status” is a question for the arbitrator under the terms of the CBA.1
It is clear that the Union’s right to arbitration is limited to the scope of
Grievance 10-02 and that the Union’s complaint is limited to Grievance 10-02.
Thus, the district court did not err in ordering Albemarle to arbitrate Grievance
10-02. It is the arbitrator’s task to evaluate that grievance in light of the CBA;
if the Union attempts to raise issues outside of its scope, the arbitrator need not
consider them. We AFFIRM.




      1
        No level of the internal review process showed that Grievance 10-02 was a complaint
disguised as a grievance.

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