Communications Workers of America v. BellSouth TeleCommunications, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12669
Non-Argument Calendar
____________________
COMMUNICATIONS WORKERS OF AMERICA,
Plaintiff-Appellee,
versus
BELLSOUTH TELECOMMUNICATIONS, INC.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03307-WMR
____________________
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2 Opinion of the Court 21-12669
Before L UCK , LAGOA , and B RASHER , Circuit Judges.
PER C URIAM :
BellSouth Telecommunications, LLC1 appeals the district
court’s order denying its motion for summary judgment and grant-
ing Communications Workers of America’s cross-motion for sum-
mary judgment. After careful review, we vacate the summary
judgment for the union and remand for entry of summary judg-
ment for BellSouth.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case is before us for a second time, and the basic facts
remain the same. BellSouth is a telecommunications service pro-
vider, and Communications Workers of America is a union repre-
senting BellSouth employees. BellSouth and the union entered
into a collective bargaining agreement establishing wages, hours,
and other terms and conditions of employment for BellSouth em-
ployees. Article 21.01 of the agreement laid out a four-step griev-
ance process for resolving disputes between BellSouth and its em-
ployees. And article 23.01 provided for arbitration of disputes not
resolved through the grievance process.
But certain types of disputes were excluded from arbitration.
Article 19.04 of the agreement provided one such exception:
1 Although docketed here and in the district court as “BellSouth Telecommu-
nications, Inc.,” BellSouth is a limited liability company.
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21-12669 Opinion of the Court 3
“Nothing herein shall be construed to subject the [benefit p]lans or
their administration to the arbitration procedures of [a]rticle 23.”
Article 19.01 enumerated the benefit plans—including BellSouth’s
pension plans—incorporated by reference into the collective bar-
gaining agreement.
The agreement also incorporated those pension plans into
its definition of “seniority,” with article 1.27 stating that “[s]eniority
shall mean [t]erm of [e]mployment (TOE)/[n]et [c]redited [s]ervice
(NCS) as defined by the applicable [p]ension [p]lan.” An em-
ployee’s seniority governed various matters, including “assign-
ment of hours and vacations, layoffs, rehiring after layoffs, volun-
tary transfers, involuntary transfers[,] and promotions.” Further,
article 7.02(A)(8) provided that “[a]ny employee recalled under the
provisions of this section within 5 years from the date of his/her
layoff will have the continuity of his/her service protected, includ-
ing seniority, and if his/her layoff was not for more than 6 months
duration, he/she will be allowed service and seniority credit for
such layoff unless it began within 12 months of a previous layoff.”
BellSouth hired John Chris Butler in April 2013. Butler had
worked two prior stints with BellSouth: from April 1999 to Septem-
ber 2008 (when he resigned) and again from October 2009 to April
2012 (when he was laid off). But when BellSouth rehired him the
second time, the company gave Butler seniority credit only for his
2009 to 2012 tenure.
Butler believed BellSouth should’ve also bridged his senior-
ity to include his first stint with the company. So the union filed a
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4 Opinion of the Court 21-12669
grievance on his behalf, asserting that because Butler’s only break
in service was from 2008 to 2009—following his resignation—his
“term of employment” should have included his service from 1999
until then. BellSouth denied the grievance at each step of the griev-
ance process after concluding that Butler’s seniority had been
properly calculated.
The union requested to arbitrate the dispute, and BellSouth
and the union scheduled an arbitration hearing. But the company
later canceled the hearing based on its belief that the grievance was
non-arbitrable. So the union sued to compel arbitration under sec-
tion 301 of the Labor Management Relations Act, 29 U.S.C. section
185, alleging that BellSouth’s refusal to arbitrate Butler’s seniority
grievance violated article 23 of the collective bargaining agree-
ment.
The parties each moved for summary judgment, both sides
arguing the issue of substantive arbitrability, and BellSouth assert-
ing a statute of limitations defense. The district court granted Bell-
South’s motion as to the statute of limitations defense and dis-
missed the union’s complaint as untimely, but we vacated and re-
manded for the district court to decide the arbitrability issue.
Commc’ns Workers of Am. v. BellSouth Telecomms., LLC, 857 F.
App’x 997, 1002 (11th Cir. 2021).
As to arbitrability, BellSouth argued that: (1) the grievance
was challenging Butler’s seniority calculation (on the basis that it
didn’t bridge his seniority); (2) under article 1.27 of the collective
bargaining agreement, Butler’s seniority was calculated as defined
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21-12669 Opinion of the Court 5
under his pension plan (the Bargained Cash Balance Program #22);
(3) the Bargained Cash Balance Program #2 administrator was
“vested with the full and absolute discretion” to interpret the pen-
sion plan’s bridging rules when calculating an employee’s seniority;
and (4) under articles 19.01 and 19.04 of the agreement, grievances
related to BellSouth’s pension plans—including the Bargained Cash
Balance Program #2—and their administration were expressly ex-
cluded from arbitration.
The union asserted that: (1) the grievance wasn’t disputing
anything pension-related but instead was challenging BellSouth’s
compliance with articles 1.27 and 7.02(A)(8); (2) disputes under col-
lective bargaining agreements with broad arbitration provisions
(like the agreement here3) are presumptively arbitrable; (3) the
agreement here contained no language excluding article 1 or 7 dis-
putes from arbitration; and (4) any doubts about arbitrability must
be resolved in the union’s favor.
2 This pension plan is referred to as BCB2 throughout the record and briefs.
3 Article 23.01(B) of the agreement read:
If at any time a controversy should arise between the parties
regarding the true intent and meaning of any provisions of this
or any other agreement between the parties or a controversy
as to the performance of an obligation hereunder, which the
parties are unable to resolve by use of the grievance procedure,
the matter will be arbitrated upon written request of either
party to the other.
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6 Opinion of the Court 21-12669
The district court agreed with the union, granting summary
judgment in its favor and ordering BellSouth to arbitrate the griev-
ance. The district court found that the grievance “center[ed] on
whether Butler’s [s]eniority was properly calculated to credit him
for his ‘continuity of service’ as defined in [a]rticle 7.02(A)(8).” Alt-
hough Butler’s pension plan and the plan’s administration “cer-
tainly may be implicated and involved in the dispute’s ultimate res-
olution,” the district court found that neither was “actually in dis-
pute.” The district court therefore concluded that article 19.04 did
not operate to exclude the grievance from the collective bargaining
agreement’s arbitration provision.
STANDARD OF REVIEW
We review de novo a district court’s order on cross-motions
for summary judgment, viewing the facts in the light most favora-
ble to the non-moving party on each motion.
Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
DISCUSSION
Four longstanding principles guide our analysis here. First,
“arbitration is a matter of contract and a party cannot be required
to submit to arbitration any dispute which he has not agreed so to
submit.”
AT & T Techs., Inc. v. Commc’ns Workers of Am., 475
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21-12669 Opinion of the Court 7
U.S. 643, 648 (1986) (citations omitted). Second, the arbitrability of
a dispute—that is, whether a collective bargaining agreement cre-
ates a duty to arbitrate a particular grievance—is an issue for judi-
cial determination unless the agreement “clearly and unmistakably
provide[s] otherwise.”
Id. at 649 (citations omitted). Third, a court
should not consider the merits of a particular grievance at the arbi-
trability stage, instead considering only whether the parties agreed
to arbitrate the dispute.
Id. And fourth,
where the contract contains an arbitration 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 posi-
tive assurance that the arbitration clause is not sus-
ceptible of an interpretation that covers the asserted
dispute. Doubts should be resolved in favor of cover-
age.”
Id. at 650 (citation omitted). Where an agreement’s arbitration
provision is broad, courts should look for an “express provision ex-
cluding a particular grievance from arbitration”; otherwise, “only
the most forceful evidence of a purpose to exclude the claim from
arbitration can prevail.”
Id. (citation omitted).
Because Butler’s grievance disputed his seniority calcula-
tion, and calculating seniority was the province of Butler’s pension
plan administrator, the grievance here squarely challenged the ad-
ministration of Butler’s pension plan. The grievance asserted that
Butler had, by 2015, “completed enough service to now have his
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8 Opinion of the Court 21-12669
term of employment include” his first stint with BellSouth—that is,
Butler’s “term of employment” had been calculated incorrectly be-
cause it failed to bridge his 1999 to 2008 stint. Article 1.27 of the
collective bargaining agreement defined seniority as an employee’s
“term of employment” as defined by the employee’s pension plan.
So to dispute the calculation of Butler’s “term of employment” was
to dispute his seniority calculation.
And Butler’s seniority calculation fell entirely within the ad-
ministration of his pension plan. Article 1.27 adopted the pension
plan’s “term of employment” as Butler’s “seniority” under the col-
lective bargaining agreement. The plan’s “Summary Plan Descrip-
tion,” in turn, outlined rules for the “term of employment” calcu-
lation. These included three “Break in Service” rules detailing the
impact of terminations and absences on an employee’s “term of
employment,” as well as a series of special rules applicable under
certain collective bargaining agreements or in specific scenarios.
Under Butler’s pension plan, the plan administrator had to apply
the special rules to calculate an employee’s “term of employment.”
Importantly, under the pension plan, the administrator had “full
and absolute discretion to interpret the terms of the [p]lan . . . and
all matters of fact with respect to [the administrator’s] particular
duties.” All of these pension plan provisions were incorporated by
reference into the collective bargaining agreement.
In short, Butler’s grievance challenged the accuracy of a
“term of employment” (that is, seniority) calculation governed by
pension plan rules applied by a pension plan administrator who had
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21-12669 Opinion of the Court 9
“full and absolute discretion” to interpret those rules. The griev-
ance plainly disputed the pension plan and its administration. And
the union admits that the collective bargaining agreement con-
tained an express provision excluding the pension plans “or their
administration” from arbitration. Because BellSouth did not agree
to submit disputes like Butler’s to arbitration, the grievance was
not arbitrable. The district court therefore erred in granting sum-
mary judgment in the union’s favor and ordering arbitration.
On appeal, the union maintains that Butler’s grievance chal-
lenged only BellSouth’s compliance with articles 1.27 and
7.02(A)(8) of the collective bargaining agreement—not Butler’s
pension plan or its administration. The union says article
7.02(A)(8) “provide[d] a right to certain employees recalled by
[BellSouth] that impacts seniority,” and that right didn’t become
non-arbitrable simply because the parties agreed to “tie seniority”
under the collective bargaining agreement to BellSouth’s pension
plan calculations.
The union’s position—that the grievance was about some-
thing other than how Butler’s pension plan calculated his senior-
ity—is inconsistent with how Butler’s grievance arose. At the sum-
mary judgment hearing, BellSouth explained (without objection
from the union) that Butler “received a letter from Fidelity—that’s
the [pension] plan administrator—that gave him his seniority date,
and he did not agree with that . . . . So [they were], in fact, issues
with regard to seniority, as indicated from the plan administrator,
that started the dispute.”
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10 Opinion of the Court 21-12669
The union’s position is also belied by its internal characteri-
zation of the dispute. In a staff request for arbitration approval pre-
pared by Herman Junkin, Butler’s union representative, Junkin
stated that “the issue is not the [pension] plan. The issue is [Bell-
South’s] disregard for the language in [a]rticle 7.02(A)(8).” Yet Jun-
kin observed that article 7.02(A)(8) and the pension plan “agree that
an absence due to layoff should not be considered a ‘break in ser-
vice’ and the employee should have the ‘continuity of his/her ser-
vice protected.’” So the problem was the pension plan’s
application
of that rule when calculating Butler’s seniority.4 Indeed, Junkin
framed the issue as BellSouth’s “refusal to credit [Butler’s] original
period of service (1999–2008) after he completed three (3) ‘contin-
uous’ years of service,
per the special rule for District 3 in the [pen-
sion] plan.” Junkin further explained that the union’s “position is
that more than one [break in service] condition in the chart
on page
30 of the [pension plan] is applicable in this instance and that [Bell-
South] is not adhering to the full language in Article 7.02(A)(8).”
But, as the union official explained, application of the special break
4 This is consistent with how Junkin described the dispute in his declaration.
Junkin stated that Butler should’ve “had only to work 3 years to bridge all of
his prior service,” but Butler’s “service was not properly credited.” It’s also
consistent with the union’s response to BellSouth’s statement of material facts:
the union did not dispute that BellSouth Pension Operations said its seniority
calculation was correct but “dispute[d] that this assessment [was] correct, be-
cause Butler was not provided his full seniority” under article 7.02(A)(8) of the
collective bargaining agreement.
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21-12669 Opinion of the Court 11
in services rules fell within the administration of Butler’s pension
plan.
CONCLUSION
Because the collective bargaining agreement excluded dis-
putes about BellSouth’s pension plans and their administration
from arbitration, BellSouth did not agree to submit Butler’s griev-
ance to arbitration. And because the grievance was not arbitrable,
the district court erred in granting summary judgment in the un-
ion’s favor and ordering arbitration. We therefore vacate the dis-
trict court’s summary judgment for the union and remand with in-
structions for the district court to enter summary judgment for
BellSouth.
VACATED AND REMANDED with instructions.
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