Paper Allied-Indust v. Exxonmobil Refining

United States Court of Appeals
Fifth Circuit
F I L E D
May 10, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-20281
_______________
PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION LOCAL NO. 4-2001,
Plaintiff-Appellee,
VERSUS
EXXONMOBIL REFINING & SUPPLY COMPANY,
A DIVISION OF EXXONMOBIL CORPORATION,
DOING BUSINESS AS EXXON COMPANY USA,
A DIVISION OF EXXON CORPORATION; ET AL.,
Defendants,
EXXONMOBIL REFINING & SUPPLY COMPANY,
A DIVISION OF EXXONMOBIL CORPORATION,
DOING BUSINESS AS EXXON COMPANY USA,
A DIVISION OF EXXON CORPORATION,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:03-CV-5139
_________________________

-- 1 of 11 --

2
Before SMITH, BARKSDALE, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
ExxonMobil Refining & Supply Company
(“Exxon”) appeals a decision sending to arbi-
tration a grievance filed by the Paper, Al-
lied-Industrial, Chemical and Energy Workers
International Union LocalNo. 4-2001 on behalf
of Elizabeth Salinas. We affirm.
I.
In January 2001, Exxon transferred Salinas
to the Clerical Unit as a Senior Administrative
Assistant because her medical condition had
caused her to become unable to perform the du-
ties of her former Instrument Technician posi-
tion. In late January 2003 Salinas was sent
home after being informed that Exxon would
no longer accommodate her medical restric-
tions; in March 2003 she was notified that she
would not be permitted to return to work.
That same month, the union filed a grievance
alleging that her discharge was based on a
“disability discrimination.” The union amended
the grievance in April 2003 to allege a termina-
tion for unjust cause.
The union requested that the grievance be
sent to arbitration because the termination vio-
lated Article VI of the Collective Bargaining
Agreement (“CBA”), which provides that the
employer may discharge and discipline employ-
ees for just cause. Article XXI states that an
unsuccessful grievance that involves an alleged
violation of a specific provision of the CBA
must be submitted to arbitration.1
Exxon denied arbitration, contending that
Salinas was not discharged pursuant to Article
VI but instead received a disability separation
necessary to receive long-term disability bene-
fits. The union then sued to enforce the arbi-
tration provision of the CBA.
The district court compelled arbitration,
reasoning that on its face the claim that the
termination was not for just cause is arbitrable.
The court added that there was no evidence
supporting Exxon’s characterization of Sa-
linas’s discharge as a challenge to a disability
determination, such as evidence that she had
received a disability separation.
Exxon appeals, contending that the district
court erred by (1) applying the “rational mind”
standard of procedural arbitrability and (2) ig-
noring “most forceful evidence” that the par-
ties did not intend disability determinations to
be subject to the arbitration provision of the
CBA (e.g. ignoring evidence with respect to
arbitrability from the renegotiation of the Dis-
ability Plan and ignoring the fact that the Side
Agreement with respect to Salinas superseded
the CBA and did not provide for arbitration).
II.
We review de novo an order compelling
1 Article XXI of the CBA, entitled “Arbitration,”
reads as follows:
(continued...)
1(...continued)
When the decision of the appropriate Manager
on any grievance appealed to him/her under the
provisions of Article XX is not satisfactory to
the Union and when such grievance involves an
alleged violation of a specific provision of this
Agreement by the Company, then upon written
demand by the Union, the dispute will be re-
ferred, within 30 days following the decision of
the Manager or his/her designated representa-
tives, to arbitration . . . .
(Emphasis added.)

-- 2 of 11 --

3
arbitration. Gen. Warehousemen & Helpers
Union Local 767 v. Albertson’s Distrib., Inc.,
331 F.3d 485, 487 (5th Cir. 2003). Therefore,
we need not discuss Exxon’s first issue on
appeal, which is that the district court used the
“rational mind standard” of procedural arbi-
trability instead of the standard for substantive
arbitrability.2
“The courts’ role is very limited when decid-
ing issues of arbitrability.” Oil, Chem. &
Atomic Workers’ Int’l Union, Local 4-447 v.
Chevron Chem. Co., 815 F.2d 338, 343 (5th
Cir. 1987). The court’s function is to decide
whether the claim asserted is the type of claim
the parties have agreed to arbitrate. Id. In no
way are the courts to consider the merits of a
claim. Id. Rather, the court “is confined to as-
certaining whether the party seeking arbitration
is making a claim which on its face is governed
by the contract.” United Steelworkers of Am.
v. Am. Mfg. Co., 363 U.S. 564, 568 (1960).
An “order to arbitrate the particular griev-
ance 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.” Warrior &
Gulf, 363 U.S. at 582-83. Doubts should be
resolved in favor of coverage. Id. That pre-
sumption is successfully rebutted only if the
party resisting arbitration shows either (1) the
existence of an express provision excluding the
grievance from arbitration or (2) the “most
forceful evidence” of a purpose to exclude the
claim from arbitration. Commc’ns Workers of
Am. v. Southwestern Bell Tel. Co., 415 F.2d
35 (5th Cir. 1969).
A.
With respect to its second issue on appeal,
Exxon relies on Pac. Northwest Bell Tel. Co.
v. Commc’ns Workers of Am., 310 F.2d 244
(9th Cir. 1962), to argue that evidence of bar-
gaining history can be “most forceful evi-
dence” that a particular dispute is not arbitra-
ble. In this circuit, however, evidence of bar-
gaining experience can be introduced only
where the contract language is ambiguous as
to arbitrability:
Accordingly, in this circuit the courts must
construe the ‘language of the contract as fi-
nally agreed upon . . . in accordance with
ordinary rules of construction without ref-
erence to the give and take of the bargain-
ing sessions which produced the final ter-
minology. Otherwise we would abandon
completely the parol evidence rule when
dealing with this type of contract.’ NLRB
v. Gulf Atl. Warehouse Co. . . . . Only
where the contract claim and its relation-
ship to the written contract is vague or un-
clear is such an inquiry permissible, and
then not to alter or vary the plain meaning
of the contract but merely to understand
2 Exxon’s argument also fails because the district
court did apply the correct legal standard when it
stated that the test for whether the dispute was
arbitrable was whether the arbitration clause in the
agreement was “‘susceptible of an interpretation
that covers the asserted dispute,’” citing language
directly on point from United Steelworkers of Am.
v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582–83
(1960), an opinion dealing with substantive arbitra-
bility. In Warrior & Gulf the Court held that ar-
bitration should not be denied unless it can be said
with “positive assurance” that the arbitration clause
does not cover the dispute. Thus, the district court
cited the correct legal standard, and there is no in-
dication that when it used the words “rational mind”
later in its analysis, it was referring to the proce-
dural arbitrability test rather than to the fact that it
was rational/logical that the dispute at issue was
“susceptible” of an interpretation that the dispute
was covered by the arbitration clause.

-- 3 of 11 --

4
the exact setting in which it was consum-
mated.
Southwestern Bell, 415 F.2d at 40-41 (empha-
ses added).
In Southwestern Bell, we expressly referred
toSSand implicitlyrejectedSSPacific Northwest
Bell inasmuch as it states that “[t]he very nature
of a collective bargaining agreement requires
that it be read in the light of bargaining his-
tory.” We noted that “the courts must construe
the ‘language of the contract as finally agreed
upon . . . without reference to the give and take
of the bargaining sessions” and held that bar-
gaining evidence cannot be introduced when
there is no doubt that the arbitration clause
covers the dispute at issue.3
In Southwestern Bell, we further explained
that the union’s claim that operation of the re-
tirement provisions of the Company’s Employ-
ee Benefit Plan infringed seniority rights pro-
tected by the CBA was a “claim which on its
face is governed by the contract,” and which
obviously raised questions regarding the inter-
pretation and application of a contract provi-
sion. Id. Additionally, we rejected the em-
ployer’s argument “that it is but a ‘subterfuge’
to characterize the Union’s claim as arising un-
der the seniority provisions of the contract, the
claim actually being one under the Employee
Benefit Plan, and thus non-arbitrable unless
specifically designated.” Id. at 39-40. We
noted that though “the Plan and its application
certainly are incidentally involved in this dis-
pute, the Union’s claim is not predicated upon
any denial of rights provided under the Plan,
but rather upon the alleged infringement of
contract rights by its operation,” which was,
“unquestionably” an arbitrable issue. Id. at 40
(emphasis added).
The union’s claimthat Salinas’s termination
was for unjust cause is a claim that is arbitrable
on its face because it requires interpretation of
the CBA (Article VI, providing that an em-
ployee can be discharged for just cause). Also,
as in Southwestern Bell, although the claim
may implicate a Benefit Plan, it is not a “dis-
guised” Benefit Plan claim, because the un-
ion’s claim “is not predicated upon any denial
of rights provided under the Plan.” Rather, it
is premised on the alleged infringement of
contract rightsSSeither by the Plan’s operation
or by discrimination (if the Plan was used as a
pretext to discharge Salinas).
In other words, Salinas is claiming that her
termination was not for “just cause;” she is not
asserting that it was unwarranted under the
Disability Plan. Therefore, her dispute is un-
ambiguously arbitrable on its face, and evi-
dence of bargaining history cannot be intro-
duced.
B.
Exxon nonetheless argues that, for two
reasons, we should not rely on Southwestern
Bell. First, it claims that Southwestern Bell
was overruled by AT&T Techs., Inc. v. Com-
munications Workers of America, 475 U.S.
643, 649 (1986). This argument is tenuous.
The majority opinion in that case, written
by Justice White for a unanimous court, did
3 The decision in Int’l Ass’n of Machinists v.
Fansteel, 900 F.2d 1005 (7th Cir. 1990) (noting
that “[e]ven when the arbitration clause facially ap-
plies to the present dispute, that does not end our
inquiry”), on which Exxon relies in its reply brief, is
also distinguishable for the same reasons: In this
court, the inquiry ends if “the contract claim and its
relationship to the written contract” are not vague or
unclear. Southwestern Bell, 415 F.2d at 40.

-- 4 of 11 --

5
not address whether bargaining history can be
most forceful evidence of an intent to exclude
a dispute from arbitration. The issue instead
was whether the court or the arbitrator should
decide whether the dispute over the layoff pro-
vision was arbitrable. The court of appeals had
held that whether the dispute over the layoff
provision was arbitrable was an issue for an ar-
bitrator to decide. The Supreme Court dis-
agreed, explaining that absent an express clause
in the contract that provides that arbitrability
questions are to be decided by an arbitrator, the
arbitrator cannot decide the scope of his own
jurisdiction.
Thus, the holding of AT&T does not reach
the issue of whether evidence of bargaining his-
tory can be most forceful evidence of an intent
to exclude a dispute from arbitration. Rather,
the Court expressly declined to reach the
arbitrability issue, because the lower court,
which had sent that issue to arbitration, had not
ruled on it.4 Although the three-Justice concur
rence in AT&T did indicate that a dispute may
not be arbitrable when the party opposing ar-
bitration “adduces ‘the most forcefulevidence’
to this effect from the bargaining history,” id.
at 655, the concurring Justices did not go so
far as to declare that extrinsic evidence can be
introduced where the contract is unambiguous.
We find no indication in the Supreme Court
caselaw cited by Exxon that would allow
introduction of “most forceful” extrinsic evi-
dence even if the contract is unambiguous.
The decision that introduced the concept of al-
lowing “most forceful evidence” to demon-
strate an intent to exclude a dispute from arbi-
tration involved a “vague” (not unambiguous)
provision. In that case, the Management
Function clause purportedly excluded the dis-
pute at issue from arbitration.5
Therefore, the discussion in Warrior &Gulf
of allowing introduction of extrinsic evidence
does not address, at all, the issue of whether
such evidence could be introduced when the
contract is unambiguous. Unlike in Warrior &
Gulf, there is no ambiguity in this case.
Nor is there any clause in the CBA, vague
4 AT&T, 475 U.S. at 651 (explaining that “it is
usually not our function in the first instance to
construe collective-bargaining contracts and arbitra-
tion clauses”). Exxon argues in a similar vein as
follows:
In AT&T Technologies, the Supreme Court did
not adopt the parole-evidence rule for use in
“most forceful evidence” cases. Rather, the
Court fashioned a standard that permits only one
kind of evidence (i.e., evidence establishing a
purpose to exclude a particular kind of dispute
from arbitration) and requires that the proponent
offering such evidence satisfy a high threshold
(i.e., “most forceful” evidence). Consequently,
cases such as Southwestern Bell, which conflict
with and were decided before AT&T Technolo-
gies, are no longer reliable precedent.
(continued...)
4(...continued)
Because the majority in AT&T only actually de-
cided that the arbitrability question should be re-
solved by the court, not the arbitrator, and refused
to reach the standard the court should apply with
respect to bargaining history or other extrinsic evi-
dence, Exxon’s argument is unpersuasive.
5 See United Steelworkers of Am. v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 585 (1960)
(“[W]e think only the most forceful evidence of a
purpose to exclude the claim from arbitration can
prevail, particularly where, as here, the exclusion
clause is vague and the arbitration clause quite
broad.”) (emphasis added).

-- 5 of 11 --

6
or otherwise, that would introduce any doubt as
to whether disputes allegedly violating Article
VI are arbitrable. Exxon rejected the union’s
arbitration demand on the ground that arbitra-
tion of a claim with respect to Salinas’s termi-
nation would violate Article XVII(A) of the
CBA, which provides that the CBA does not
affect the eligibility of employees to participate
in the Benefit Plans (including the disability
plan).6 If this argument were correct, Article
XVII(A) would qualify as an express provision
in the CBA excluding certain types of griev-
ances from arbitration and could render this dis-
pute non-arbitrable.
But this reasoning is illogical: By its terms,
the union could never arbitrate a discharge,
such as a discharge for racial or other discrimi-
nation, because reinstatement of a discharged
employee would make him again qualify for
benefits, which would “of necessity” affect his
eligibility to participate in the Benefit Plan.
This would in effect nullify Article VI.
Furthermore, Article XVII(A) does not men-
tion arbitration. It is unlike the exclusionary
clause at issue in Southwestern Bell, which ex-
presslyexcluded claims relating to Benefit Plans
from arbitration. It is also unlike the Man-
agement Function clause in Warrior & Gulf.
Last, as we explained in Southwestern Bell,
the Court in Warrior & Gulf declined to ad-
dress the issue of whether bargaining evidence
could ever be admissible to show whether an
issue was excluded from arbitration:
Though some disagreement exists among
the circuits on the admissibility of evidence
of bargaining history to show whether an
issue was excluded from arbitration . . ., the
rule in this circuit has been clear since the
Supreme Court’s opinion in [Warrior &
Gulf], where the majority, faced with hav-
ing to determine whether an exclusionary
clause prevented arbitration of a subcon-
tracting grievance, refused even to mention
bargaining historythat showed repeated un-
successful attempts by the Union to secure
contractual restrictions on subcontracting.
Southwestern Bell, 415 F.2d at 40 (citations
omitted). Therefore, unless and until the Su-
preme Court addresses the issue of whether
bargaining history is admissible to modify the
terms of an unambiguous contract, Southwest-
ern Bell is good and binding law in this court.7
6 See Jones Decl. at ¶ 5 (“I explained that the re-
lief requested by Ms. Salinas (i.e., reinstatement to
her job and restoration of all benefits) would of
necessity “affect [her] eligibility . . . for participa-
tion in the Companies’ Benefit Plans,” which would
violate Article XVII(A).”).
7 The decision in Int’l Union of Operating
Eng’rs, Local 279 v. Sid Richardson Carbon Co.,
471 F.2d 1175, 1178 (5th Cir. 1973), which Exxon
relies on, could not have overruled Southwestern
Bell, because of our rule that a panel decision
binds later panels. In any event, that case dealt
with a situation in which there was “doubt” as to
whether the arbitration clause covered the dispute,
so introduction of bargaining history was permissi-
ble under Southwestern Bell:
But even a standard of arguable arbitrability
which favors arbitration in the doubtful case
. . . cannot justify our construing an arbitration
clause of limited scope into one which vests
arbitration of representation questions. Espe-
cially is this true where the bargaining history
so clearly refutes an intent to arbitrate represen-
tation questions.
Id. at 1177-78 (emphasis added, footnote and cita-
tions omitted).

-- 6 of 11 --

7
C.
The second argument Exxon makes in its at-
tempt to minimize the precedential effect of
Southwestern Bell is even more far-fetched than
is its reliance on the concurrence in AT&T.
Exxon contends that
the Fifth Circuit characterized Southwestern
Bell’s limited exception to the parole-evi-
dence rule as dictum, and rejected the com-
pany’s arbitrability argument, in part, be-
cause it offered “no extrinsic evidence such
as bargaining history” to support its inter-
pretation. IBEW v. Western Electric Co.,
661 F.2d 514, 516, n.4 [(Former 5th Cir.
Nov. 1981)].
(Emphasis added.)
But, as is evident from a reading of Southwest-
ern Bell, the dictum there regards the permis-
sion to introduce bargaining evidence when the
contract is ambiguous, not the prohibition to
introduce such evidence when the contract is
unambiguous:
Only where the contract claim and its rela-
tionship to the written contract is [sic] vague
or unclear is such an inquiry [into bargaining
history] permissible, and then not to alter or
vary the plain meaning of the contract but
merely to understand the exact setting in
which it was consummated. . . . But this
narrow exception to the general rule of ex-
clusion is not operative here, where both the
nature of the Union’s claim and the meaning
of the collective agreement are evident . . .
.
Southwestern Bell, 415 F.2d at 40–41 (footnote
omitted).
This court in Southwestern Bell had in fact
actually held that evidence of bargaining his-
tory is not admissible where the contract is
unambiguous, which is preciselythe issue here.
Therefore this could not have been dictum
regardless of how we described it in Western
Electric.8 Accordingly, Exxon’s attempt, at
oral argument and in its reply brief, to char-
acterize Southwestern Bell as inapposite is
misguided.
Furthermore, in Western Electric we did
not address Southwestern Bell’s holding, but
only its dictum that allowed introduction of
bargaining evidence when the contract was
“ambiguous.” In Western Electric, the em-
ployer conceded that the dispute over each of
the forty employees’ classifications was arbi-
trable, yet the employer contended that the use
of the term “an employee” manifested an intent
to submit to arbitration only issues involving
one employee at a time, not an intent to submit
to “group arbitration.” We explained that the
contract did not unambiguously provide the in-
terpretation that the employer suggested; we
stated that if the company intended the words
“an employee” to have such an effect, “it had
to make its understanding much clearer than
this.” Western Elec., 661 F.2d at 516-17.
Therefore, there was an ambiguity as to the
effect of the term “an employee.” We then
noted that although the dictum in Southwest-
ern Bell allows introduction of evidence of
8 See Southwestern Bell, 415 F.2d at 40–41
(“As a final argument, Southwestern Bell contends
that the question of the arbitrability of this dispute
should not be determined without the benefit of
evidence revealing the bargaining history surround-
ing the inclusion of Article VII in the contract . . .
. Relying upon two prior Fifth Circuit decisions,
the District Court refused the proffer. We are in
accord with this determination.”).

-- 7 of 11 --

8
bargaining history when the contract is “ambig-
uous,” the employer in that case did not in-
troduce any such evidence. Id. at 516. Thus,
absent any extrinsic evidence against arbitra-
tion, and given the presumption in favor of arbi-
trability, we resolved the doubt in favor of
arbitration.
Western Electric is thus inapposite not only
because it did not reject Southwestern Bell, but
also because, as in the Southwestern Bell dic-
tum, it allowed introduction of bargaining his-
tory and other extrinsic evidence where the
contract was ambiguous. In contrast, the
contract here unambiguously covers disputes
relating to the interpretation of the “just cause”
discharge provision of the CBA.
Last, Exxon argues that NLRB v. L.B. Pries-
ter & Son, Inc., 669 F.2d 355 (5th Cir. 1982),
also supports its argument in favor of allowing
the introduction of bargaining evidence. That
decision, however, is not inconsistent with ei-
ther the holding or the dictum in Southwestern
Bell. In that case, as Exxon admits, we “upheld
the NLRB’s affirmation of an ALJ’s reliance on
extrinsic evidence to shed light on an ambigu-
ous CBA provision.” Exxon Reply Br. at 2
(emphasis added). Again, unlike the contract in
this case, the contract there was “ambiguous,”
so introduction of bargaining evidence was
permissible under the dictum in Southwestern
Bell. Most importantly, that case did not ad-
dress whether the introduction of bargaining
history would be permissible if the contract
were not ambiguous.
D.
Other courts, as well, have held that unless
the CBA provides instances of what constitutes
“just cause” and expressly provides that dis-
charges based on those instances are not arbi-
trable, the question whether an employee was
discharged for just cause is arbitrable. Where
the CBA prohibits discharge of regular em-
ployees “‘except for just cause,’ and does not
define ‘just cause,’” and “where the CBA
authorizes the arbitrator to resolve disputes
concerning the interpretation or application of
its terms, it remains for the arbitrator to deter-
mine whether a discharge was for ‘just
cause.’” First Nat’l Supermarkets, Inc. v.
Retail, Wholesale & Chain Store Food Em-
ployees Union Local 338, 118 F.3d 892,
896-97 (2d Cir. 1997). If the employer
“wished to have an unquestionable right to dis-
charge an employee for any specified conduct,
it needed to negotiate for recognition of that
right in the CBA.” Id. at 896.9
Similarly in this case, if Exxon wished to
9 In Local 453, Int’l Union of Elec., Radio &
Mach. Workers v. Otis Elevator Co., 314 F.2d 25,
28 (2d Cir. 1963) (Marshall, J.), the court ex-
plained that where the question submitted in a
grievance has a broad scope, framed only in terms
of “just cause,” the dispute is arbitrable:
The agreement nowhere defines what conduct
constitutes “just cause” for discharge or what
criteria shall govern the ‘propriety’ of a dis-
charge. That the parties intended to leave such
definition to the arbitrator is made plain both by
the “plenary grant” of power made to him . . .
and by the broad scope of the stipulated ques-
tion, framed only in terms of “just cause,”
which accompanied the submission. Although
the scope of an arbitrator’s authority is not un-
limited, . . . the terms of the contract and of the
submission in the present case, underscored by
the rule that courts must uphold the arbitrator
in the exercise of the broadest jurisdiction in the
absence of specific contractual limitations on
that jurisdiction, clearly bespeak arbitrability.
(Emphasis added, citations omitted.)

-- 8 of 11 --

9
have an unquestionable right not to submit to
arbitration discharges that allege “unjust cause”
but touch matters relating to a disability termi-
nation, it could have provided that (1) a long-
term disability termination constitutes a dis-
charge for just cause and (2) discharges that are
made for a reason that is defined as “just cause”
are not arbitrable.10 Exxon is free to argue to
the arbitrator that the disability was the cause,
not the pretext, of the termination and that
Salinas’s termination was for just cause.
III.
Even if bargaining evidence were admissible,
the bargaining evidence in this case is not most
forceful evidence showing a purpose to exclude
this dispute from arbitration. The bargaining
history refers to the employer’s refusal to
arbitrate disability decisions and benefit levels
under the Plan. But the union is making a
“disability discrimination” argument for the dis-
charge, which is not a claim of whether the
Benefit Plan was applied correctly, but whether
the company discriminated against Salinas be-
cause of her disability. The March grievance
specifically alleges a discharge based on a “dis-
ability discrimination” and alleging violation,
among others, of Articles II (discrimination)
and VI (just cause discharge). The April
amended grievance alleges a violation of the
just cause termination provision.
Thus, even if the bargaining history had
proved that the parties did not intend disability
determinations to be arbitrable,11 and assuming
arguendo that there was evidence in the record
showing that Salinas received a disability ter-
mination, a claim that the company discrimi-
nated against an employee and unjustly termi-
nated him because of his disability is, as we
10 See also Irving Materials, Inc. v. Local 716,
779 F. Supp. 968, 975 & n.12 (S.D. Ind. 1992):
Parties may limit an arbitrator’s authority by ex-
pressly removing the just cause determination
from his scope of authority, see Int’l Bhd. of
Elec. Workers v. Sawnee Elec. Membership
Corp., 862 F.2d 1534, 1536 (11th Cir. 1989), or
by enumerating the specific items that will con-
stitute just cause. See Delta Queen Steamboat
Co. v. District 2 Marine Eng’rs Beneficial
Ass’n, 889 F.2d 599, 601 (5th Cir. 1989) . . . .
Neither limitation is present in the Agreement
here.
11 We disagree with Exxon that the bargaining
history it presented is most forceful evidence of an
intent to exclude this type of dispute from arbitra-
tion. The bargaining history would not even satisfy
the test of Pacific Northwest Bell, the main case on
which Exxon relies (and which, as explained, this
court rejected). Pacific Northwest Bell is distin-
guishable because it dealt with evidence relating to
bargaining for the CBA, and in particular with
bargaining with respect to the arbitration clause of
the CBA. In contrast, here the evidence is related
to bargaining for a different contract, the Benefit
Plan.
In particular, the bargaining for the Benefit Plan
occurred many years after the arbitration and the
“just cause” clauses of the CBA were adopted. Al-
though it may be possible for a later contract like
the Benefit Plan to supersede the CBA with respect
to the arbitration issue, it would be a stretch to
argue that a later contract supersedes an earlier
contract with respect to a particular issue, absent
an express provision in the later contract relating to
that issue.
Exxon’s argument that it was the union’s bur-
den to amend the CBA to provide for arbitration of
disputes such as that in this case is therefore
misplaced. Because the arbitration clause of the
CBA facially covers such disputes, it was Exxon’s
burden to negotiate for a provision, preferably in
the CBA (but also possibly elsewhere), that instead
would provide that such disputes are not arbitrable.

-- 9 of 11 --

10
explained in Southwestern Bell, only “inciden-
tally” related to a disability determination.
Although the disability determination, if cor-
rect, will help the arbitrator in deciding the
merits of the “unjust termination” claim, it is
not at the heart of a discrimination/“unjust
cause” termination grievance, which is predi-
cated on the motives of the company in making
that decision. That is, merely because Exxon
asserts a defense based on a non-arbitrable issue
does not render non-arbitrable a claim that was
arbitrable when asserted.12
Further, if the court were to decide the friv-
olousness of the defense in deciding arbitrability
(e.g. was the disability determination a “pre-
text” or was it correct), the court in effect
would be deciding the merits of the case; as we
have explained, this is not permitted, because
the parties have reserved the merits of the case
to the arbitrator.
In sum, the bargaining history does not pre-
sent any evidence that disputes alleging unjust
termination (rather than contesting a disability
termination) are non-arbitrable just because the
employee was disabled. Exxon presented no
evidence of bargaining history or an express
contractual provision showing that the parties
wished to exclude from arbitration claims re-
lated to discrimination discharges.
IV.
Exxon claims that the Side Agreement with
respect to Salinas superseded the CBA and,
because it does not provide for arbitration, this
dispute is not arbitrable. But this argument
fails precisely because the Side Agreement is
silent with respect to arbitration. That is, that
agreement does not provide that any grievance
that Salinas may file related to a possible fu-
ture discharge cannot be submitted to arbitra-
tion. If Exxon intended that the Side Agree-
ment supersede the CBA with respect to the
arbitration issue, it could have provided for
that expressly.
Our decision in Int’l Union of Operating
Eng’rs, Local 351 v. Cooper Natural Res.,
Inc., 163 F.3d 916, 919 (5th Cir. 1999), and
the other cases on which Exxon relies, are dis-
tinguishable because in those cases, the later-
in-time last chance agreements (LCA’s) were
not silent as to the issue on which they alleg-
edly superseded the CBA. Under the CBA, a
drug offense did not automatically result in a
discharge. In contrast, the LCA’s expressly
included clauses that reduced the benefits
awarded by the CBA, providing that any fu-
ture similar offenses (usually drug offenses)
would automatically result in discharge. In
contrast, the Side Agreement does not provide
that Salinas may be discharged at any time
without any recourse to arbitration.
Further, the Side Agreement does not even
provide that Salinas can be discharged (with or
without arbitration) if her medical restrictions
will prohibit her from meeting her obligations
as a Senior Administrative Assistant. Instead,
it states only that in that circumstance “she will
be medically evaluated and her restrictions re-
viewed.”
“Reviewed” does not mean “automatically
discharged.” It does not exclude a possibility
that Salinas could be transferred to a less “sen-
12 Otherwise parties could always attempt to as-
sert questionable or frivolous non-arbitrable de-
fenses to escape arbitration and engage in forum
shopping. A company accused of discrimination
based on disability cannot use the “disability de-
termination” pretext to insulate itself from an ar-
bitration of a claim for unjust termination.

-- 10 of 11 --

11
ior” position in the Clerical Unit, because, as
the Side Agreement recognizes, Salinas passed
the “Staff Support Test and is qualified to
work” in that unit. Therefore, there is no in-
dication in the Side Agreement that Salinas
would be automatically discharged if her condi-
tion worsened and she were medically evalu-
ated.13
In any event, the issue of whether the dis-
charge was appropriate was still arbitrable in
the cases on which Exxon relies. In those cas-
es, the court merely reviewed the arbitral award
and held that the arbitrator could not fashion
“other relief” if the LCA provided that, in case
of a discharge for a drug offense, there will be
no reinstatement. Cooper, 163 F.3d at 919.
Those courts did not state that a discharge for
a future drug offense will be non-arbitrable.
AFFIRMED.
13 Further, Exxon does not point to any evidence
that Salinas was even “medically evaluated” before
her discharge in early 2003. Jones only declared that
“by early 2003, when this dispute arose, Elizabeth
Salinas . . . had been determined to be ‘incapaci-
tated’ pursuant to the plan.” Jones does not explain
whether the determination that Salinas was
incapacitated for the purposes of performing a job
in the Clerical Unit was based on a medical evalua-
tion. Nor does Exxon indicate that there was a
“review” of Salinas’s restrictions in 2003 and that
because of her medical restrictions, she was deemed
unable to perform any job for which she was quali-
fied in the Clerical Unit.
Although Exxon pointed out at oral argument
that the union’s representative was instructed at a
deposition not to answer the question whether
Salinas was medically evaluated before her dis-
charge in early 2003, the union does not bear the
burden to prove Exxon’s defense to arbitrability.
Exxon has access to information regarding Salinas’s
medical evaluation and the review of her restrictions
(because it performed the review itself if there was
such a review). Therefore, Exxon cannot say that
this evidence is not available on account of someone
else’s failure to bring it forth.

-- 11 of 11 --