Gen Warehousemen v. Albertson's Distr

United States Court of Appeals
Fifth Circuit
F I L E D
May 30, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-10831
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GENERAL WAREHOUSEMEN AND HELPERS UNION LOCAL 767,
Plaintiff-Appellant,
VERSUS
ALBERTSON’S DISTRIBUTION, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before SMITH and BARKSDALE, Circuit
Judges, and DUPLANTIER,* District
Judge.
JERRY E. SMITH, Circuit Judge:
General Warehousemen and Helpers Union
Local 767 (the “union”) appeals a summary
judgment denying its request for an order to
compel arbitration of a grievance by a union
member against Albertson’s Distribution, Inc.
(“Albertson’s”). We reverse and remand.
I.
Gabe Redondo worked as a truck driver for
Albertson’s. Redondo belongs to the union,
which is the authorized bargaining agent for
certain Albertson’s employees. The union and
Albertson’s have a collective bargaining agree-
* District Judge of the Eastern District of Lou-
isiana, sitting by designation.

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ment (“CBA”) that governs the terms and
conditions of Redondo’s employment.
During a delivery to an Albertson’s grocery
store on March 13, 2001, a female employee
allegedly observed Redondo urinating in plain
view beside the store; she reported the incident
to management that day. When Redondo
returned to the distribution center, he met with
his shop steward and another supervisor. At
the end of the meeting, Redondo was
suspended pending further investigation. After
the investigation, Albertson’s fired Redondo
on March 16.
The record contains a single grievance re-
lated to this incident, and the parties dispute
when Redondo and the union presented the
grievance to Albertson’s. On one hand, Al-
bertson’s contends they presented it on March
13. Some evidence supports this view. Re-
dondo dated the grievance March 13 and
checked the box for “unjust suspension,” not
“unjust discharge.” Further, Redondo’s shop
steward signed and dated the grievance March
13.
On the other hand, the union contends that
they presented it on March 19. Other evidence
supports this view. Gilbert Abalos, a union
representative, noted on the grievance that the
union received and sent it to Albertson’s on
March 19. The union’s date-stamp on the
grievance also reads March 19.
The union requested arbitration of the
grievance, but Albertson’s refused. Section
17.5 of the CBA requires that arbitration must
occur within five months from the filing of a
grievance, but this period “may be extended to
incorporate probative delay resulting from un-
availability of a [company] representative in
regard to selection of an arbitrator or
scheduling of an arbitration.”
As required by CBA § 17.6, the union re-
quested a list of potential arbitrators from the
Federal Mediation and Conciliation Service
(“FMCS”), which sent the list to William
Baab, the union’s counsel, and Albertson’s on
July 10. Baab then asked John Jansonius, Al-
bertson’s’ counsel, to notify him when Janson-
ius was authorized to select an arbitrator. On
July 24, Jansonius requested a copy of the
grievance for which the union sought
arbitration. Albertson’s received a copy of the
grievance on August 21, after the five-month
arbitration period had expired. In October
2001, Jansonius responded that Albertson’s
refused to arbitrate because the grievance
covered only the suspension, not the
discharge, and the five-month arbitration
period had expired.
The union sued to compel arbitration under
§ 301(a) of the Labor Management Relations
Act of 1947, 29 U.S.C. § 185(a). The parties
filed cross motions for summary judgment.
The court granted Albertson’s’ motion and de-
nied the union’s, concluding that the grievance
did not and could not cover the discharge, be-
cause Albertson’s received it on March 13,
three days before the discharge. The court
therefore deemed any grievance about the dis-
charge waived under the CBA, which requires
the filing of a grievance within five days of an
incident. The court did not consider Albert-
son’s’ alternative argument that the union did
not timely arbitrate the grievance.
II.
We review de novo the denial of a motion
to compel arbitration. Pennzoil Exploration &
Prod. Co. v. Ramco Energy Ltd., 139 F.3d
1061, 1065 (5th Cir. 1998). Because the dis-
trict court improperly substituted its judgment

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for that of the arbitrator, we reverse.
“The courts’ role is very limited when de-
ciding issues of arbitrability.” Oil, Chem. &
Atomic Worker’s Int’l Union, Local 4-447 v.
Chevron Chem. Co., 815 F.2d 338, 343 (5th
Cir. 1987) (“Chevron”). The court decides
only whether the parties agreed to submit the
subject matter of the grievance to arbitration.
AT&T Techs., Inc. v. Communications
Workers of Am., 475 U.S. 643, 649 (1986).
Neither party, however, seriously disputes that
the CBA covers suspensions and discharges.1
For “question[s] of so-called ‘procedural
arbitrability,’” the arbitrator, not the court,
generally decides whether the parties complied
with the agreement’s procedural rules. John
Wiley & Sons, Inc. v. Livingston, 376 U.S.
543, 555 (1964). “Questions of timeliness are
ones of procedural, not substantive,
arbitrability.” Chevron, 815 F.2d at 341.
This general rule in favor of the arbitrator’s
deciding questions of procedural arbitrability
has one exception: “[A] court could deny ar-
bitration only if it could confidently be said not
only that the claim was strictly ‘procedural,’
. . . but also that it should operate to bar
arbitration altogether.” John Wiley, 375 U.S.
at 557-58. The Court observed that “such
cases are likely to be rare indeed.” Id. at 558.
We have interpreted this rare exception to
mean that “a court will not order arbitration if
‘no rational mind’ could question that the
parties intended for a procedural provision to
preclude arbitration and that the breach of the
procedural requirement was clear.” Chevron,
815 F.2d at 342 (quoting Rochester Tel. Corp.
v. Communication Workers of Am., 340 F.2d
237, 239 (2d Cir. 1965)).
The parties agree that they intended the
CBA’s procedural rules to preclude arbitration
if breached, but they vigorously contest wheth-
er the union breached them. Albertson’s
argues that the union breached the procedural
rules in two ways: (1) The union never
presented a grievance for the discharge and,
even if it did, (2) it did not arbitrate the
grievance within five months. The union
counters that the grievance covers the
discharge and that Albertson’s’ conduct
excused its untimely arbitration.
Following John Wiley and Chevron, we do
not decide for ourselves these questions of
procedural arbitrability; rather, we concentrate
on what a rational mind could decide.
Because a rational mind could conclude, from
the union’s evidence, that it complied with the
CBA’s procedural rules, the district court
should have entered an order to compel
arbitration and let the arbitrator decide these
questions.
A.
Albertson’s argues, and the district court
agreed, that the grievance could not possibly
cover the discharge, because Albertson’s had
not discharged Redondo when he presented
the grievance. According to this theory, Re-
dondo presented the grievance immediately
following his suspension on March 13, Albert-
son’s did not discharge him until March 16,
1 Albertson’s suggests that it did not agree to
arbitrate Redondo’s grievance, but this argument
misunderstands the holding of AT&T. AT&T does
not require the court to determine whether the par-
ties specifically agreed to arbitrate a particular
grievance; instead, the court determines whether
the parties agreed to arbitrate the particular class
of grievances, e.g., grievances over suspensions or
discharges. AT&T, 475 U.S. at 648-49; Chevron,
815 F.2d at 340-41. Albertson’s concedes that it
agreed to arbitrate grievances over suspensions and
discharges, which removes this case from the
threshold AT&T inquiry.

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and hence the grievance could not cover the
discharge.
Yet, the union offered sufficient evidence to
dispute this chronology. Redondo and his
shop steward signed and dated the grievance
on March 13, but Abalos noted on the
grievance that he received it and sent it to
Albertson’s on March 19, three days after the
discharge. The union’s date-stamp of March
19 supports this view of the evidence, as does
Abalos’s affidavit. The union acknowledges
that the grievance protests only the
suspension, but argues that the grievance
should be interpreted to cover the discharge,
because it arose from the same incident and
Albertson’s received it after the discharge.
Given this disputed evidence, a rational
mind could agree with the union’s chronology
and conclude that the grievance covers the
discharge. Albertson’s theory depends on its
disputed chronological facts; remove those
facts and the theory crumbles. Moreover, the
CBA does not expressly require an employee
to file separate grievances for multiple
disciplinary actions based on the same alleged
misconduct. A reasonable arbitrator could
interpret the CBA to allow a single grievance
in this situation.
Indeed, we recognized this possibility in
Ala. Power Co. v. Local Union No. 391,
IBEW, 612 F.2d 960 (5th Cir. 1980). There,
the company initially suspended the employee,
who filed a grievance protesting the
suspension. Id. at 961. After the request for
arbitration but before arbitration, the company
increased the employee’s punishment from
suspension to discharge. Id. The union asked
the arbitrator to review the discharge. Id.
Over the company’s objection, the arbitrator
reviewed the discharge and entered an award
for the employee. Id. The district court,
however, denied a motion to enforce the
award, “because the [u]nion did not present
the discharge grievance in accordance with
contract procedures.” Id.
We reversed, relying on John Wiley. Id. at
962-63. Though agnostic on whether the sin-
gle grievance could cover both disciplinary ac-
tions, we held that “[c]onsideration of these
matters is to be left to the arbitrator.” Id. at
962. “The [c]ompany should have addressed
its arguments that the proper procedures were
not followed to the arbitrator, not to the
courts.” Id. at 963. Although Alabama
Power involved enforcement of an arbitral
award, its reasoning applies with equal force
to a motion to compel arbitration.2 See Local
2 Albertson’s unpersuasively attempts to dis-
tinguish Alabama Power. Albertson’s argues that
Alabama Power involved an ambiguous grievance,
whereas this case involves an unambiguous
grievance. Nothing in Alabama Power supports
this argument. To the contrary, the cases are fac-
tually identical: Both grievances mention only the
suspension, not the discharge, and therefore require
an interpretation of the collective bargaining
agreement.
Albertson’s also cites several cases in which
employees have filed multiple grievances for mul-
tiple disciplinary actions based on the same mis-
conduct. In Albertson’s’ view, these cases show
that “it can by no means be taken as a general rule
that grievances over suspension are automatically
amended when the employee is subsequently dis-
charged.” Yet, the opposite cannot be taken as a
general rule either. Each collective bargaining
agreement is its own document. United Steel-
workers of Am. v. Warrior & Gulf Nav. Co., 363
U.S. 574, 578-79 (1960). Even if these cases con-
tradicted the reasoning of Alabama Power, which
they do not, an arbitrator still must decide whether
(continued...)

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No. 406, Int’l Union of Operating Eng’rs v.
Austin Co., 784 F.2d 1262, 1265 (5th Cir.
1986) (applying Alabama Power to a denial of
a motion to compel arbitration).
As in Alabama Power, a rational mind
could agree with the union’s view of the facts
and its interpretation of the CBA. Thus, the
arbitrator must decide whether the grievance
covers the discharge.
B.
Albertson’s further argues that, even if the
grievance covers the discharge, the union did
not timely arbitrate the grievance. Section
17.5 of the CBA requires arbitration to occur
within five months of the incident alleged in
the grievance. The union concedes that
arbitration did not occur within that time.
Albertson’s therefore contends that summary
judgment was proper, because the untimely
arbitration “operate[s] to bar arbitration alto-
gether.” John Wiley, 376 U.S. at 558.
Yet, Albertson’s never acknowledges the
final clause of § 17.5: “The five (5) month
period may be extended to incorporate
pro bative delay resulting from the
unavailability of a [company] representative in
regard to selection of an arbitrator or
scheduling of an arbitration.” The union avers
that Albertson’s was unavailable, because
Jansonius refused to select an arbitrator after
receiving the FMCS list on July 10, more than
a month before the five-month period expired.
Jansonius also refused to confirm whether he
was authorized to select an arbitrator.
We cannot say confidently, as required by
John Wiley, that this conduct does not excuse
the union’s untimely arbitration. Albertson’s
argues that the union contributed to the
failure,3 but the arbitrator must decide this
factual dispute.
Moreover, Chevron instructs that these
heavily factual disputes about the timeliness of
arbitration and potential excuses should be
submitted to the arbitrator. In Chevron, 815
F.2d at 341-42, the company argued that the
union’s untimely request to arbitrate complete-
ly barred arbitration. The union responded
that the company’s representative was un-
available based on a clause similar to § 17.5.
Id. at 342. We concluded that “since there is
a legitimate dispute as to the Union’s
compliance with the procedural requirements,
this case does not fit within the ‘rare’ group of
cases to which the Supreme Court spoke in
John Wiley . . . . [T]herefore, John Wiley
directs that the procedural questions involving
the grievance should also be decided by an
arbitrator.” Id.
A rational mind could conclude that Albert-
son’s conduct excused the union’s untimely
arbitration. Thus, the arbitrator, not the
courts, must determine whether § 17.5 bars
arbitration of the grievance.
III.
John Wiley and Chevron instruct that the
courts should not decide questions of
procedural arbitrability unless a rational mind
could not possibly rule for the party seeking
(...continued)
this particular CBA allows a single grievance to
cover multiple disciplinary actions for the same
alleged misconduct.
3 Albertson’s contends that the union did not
timely provide Jansonius with a copy of the griev-
ance when he requested it on July 10. Perhaps not,
but it must address this argument to an arbitrator,
not the courts.

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arbitration. A rational mind easily could agree
with the union’s view of the facts and its
interpretation of the CBA.4 “The questions
presented by this case, therefore, are most
properly before an arbitrator of industrial
relations, not before a federal court.” Local
No. 406, 784 F.2d at 1265.
The district court improperly substituted its
judgment for the arbitrator’s. Thus, we
REVERSE the summary judgment and
REMAND “for the sole purpose of entering an
order compelling arbitration.” Id.
4 We emphasize that we state no opinion on
whether the grievance covered the discharge or
whether Albertson’s’ conduct excused the union’s
untimely arbitration. We merely recognize that
these questions of procedural arbitrability are re-
served for the arbitrator, because a rational mind
could rule for either the union or Albertson’s. John
Wiley, 376 U.S. at 558; Chevron, 815 F.2d at 341-
42. And, we express no opinion on whether
suspension or discharge is an appropriate punish-
ment under the CBA for Redondo’s alleged act.
AT&T, 475 U.S. at 649-50 (stating that “a court is
not to rule on the potential merits of the underlying
claims . . . even if it appears to the court to be
frivolous”).

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