The full case caption appears at the
end of this opinion. Kanne, Circuit Judge. The question in this caseis whether Schreiber Foods, Inc. (“Schreiber”)must arbitrate the grievance of its employees’union, Local 75 of the International Brotherhoodof Teamsters (“Teamsters”), pursuant to thearbitration clause of their collective bargainingagreement. Although grievances arising under theagreement are arbitrable, Schreiber insists thisgrievance over scheduling is nonarbitrablebecause the agreement gives Schreiber absolutediscretion over “administration” of certainprograms and exempts questions of”administration” from the arbitration clause.However, we find that scheduling is not coveredby the administration clause or exempted fromarbitration because Schreiber’s discretion overscheduling is restricted by a different provisionof the agreement limiting scheduling to”reasonable times and frequencies.” We affirmsummary judgment in favor of the Teamsters. I. History During the summer of 1992, Schreiber and theTeamsters were in the midst of negotiations fora new collective bargaining agreement to beginthe following year. Schreiber proposed a seriesof “Pay for Performance” programs (“PP programs”)in which Schreiber employees could earncompensation above their regular wage byparticipating in a variety of work safetyactivities. On September 28, 1992, while stillnegotiating their collective bargainingagreement, the parties codified their agreementon PP programs in a “Memorandum of Agreement ofPay for Performance” (“Memorandum”). Exhibit B-1of the Memorandum described one PP program,called the “Safe Work Program,” which Schreiberinstituted on October 4, 1992. The Memorandum also delineated basic guidelinesfor the establishment and administration of PPprograms. Paragraph 5 of the Memorandum declaresthe following: The administration (for example, including butnot limited to, the content of any program,training, questions asked on any exam, grading ofthe exam, etc.) of the Pay for Performanceprogram is in the exclusive discretion of theCompany and it will not be subject toarbitration. However, Paragraph 2 of the Memorandum adds thefollowing stipulation: The Company agrees to establish a trainingschedule at reasonable times and frequencies toafford employees who desire to participate in theCompany’s pay for performance programs theopportunity to successfully complete such programbefore the anniversary date of the agreement asset forth in the parties’s collective bargainingagreement. Should the Company fail to providethis opportunity, the employee will be providedthe benefits of such program until the employeehas been provided such opportunity. In addition, Paragraph 3 of the Memorandum statesthat “[t]he Company will post training schedulesno less than four (4) months prior to any pay forperformance effective date to assure adequatetraining time.” The parties eventually reachedagreement on a new collective bargainingagreement (“CBA”) that incorporated theMemorandum and ran to September 27, 1997. Later,the parties would effectively extend the relevantterms of the CBA to September 29, 2002. On April 23, 1993, as part of the Safe WorkProgram discussed in the Memorandum, Schreiberinstituted a pre-workday exercise program thattrained employees how to perform variousexercises designed to prevent carpal tunnelsyndrome. Schreiber permitted employees toperform their exercises during the fifteenminutes before their regular shifts and paid themovertime for the extra quarter-hour of work. TheMemorandum does not refer specifically to acarpal tunnel syndrome prevention program, butExhibit B-1 of the Memorandum briefly alludes tocarpal tunnel syndrome prevention, stating that”in the event an employee is diagnosed withCarpal Tunnel Syndrome, the employee will notlose Safe Work pay, provided the employee fullyparticipates in Company sponsored Carpal Tunnelprevention programs.” At the beginning of October 1997, Schreiberunilaterally abrogated the pre-workday period forcarpal tunnel exercises and instructed employeesto perform their exercises during their regularshifts instead. Employees participating in thecarpal tunnel syndrome prevention program weretherefore no longer able to collect overtime payfor their exercises, and employee participationin the program consequently plummeted from around50 percent to 31 percent. On October 27, 1997,the Teamsters filed a grievance protesting thatSchreiber violated the CBA by eliminating thefifteen-minute overtime period. The Teamsters anticipated arbitration of thedispute because Article 10 of the CBA providesthat “[g]rievances which arise during the term ofthis Agreement and are filed before theexpiration date of the Agreement and have beentimely processed through the Grievance Procedurebut which have not been settled may be appealedto arbitration” and Article 9 of the CBA defines”grievance” as “a dispute arising under aprovision of this Agreement.” However, on March5, 1998, Schreiber responded to the grievance byciting Paragraph 5 of the Memorandum, whichstates that “[t]he administration . . . of thePay for Performance Program is in the exclusivediscretion of the Company.” Schreiber explainedthat it “[did] not believe there is any bindingagreement or practice obligating the Company tocontinue the ’15 minutes of overtime.’” On August25, 1998, after the Teamsters pressed forarbitration of its complaint, Schreiber answeredthat it “made the determination that this matteris not arbitrable under our Collective BargainingAgreement. . . . This rescheduling of a programis part of the administration of the Safe WorkProgram under the Safe Work Memorandum ofAgreement. Paragraph 5 of that Memorandumexplicitly states that administration of theProgram is not subject to arbitration.” On October 29, 1998, the Teamsters brought suitagainst Schreiber before the Wisconsin EmploymentRelations Commission to compel arbitration of thegrievance pursuant to Article 10 of the CBA.Schreiber removed the case under 28 U.S.C. sec.1441(b) to federal district court on November 24,1998. After cross-motions for summary judgment,the district court granted summary judgment infavor of the Teamsters on September 1, 1999.Schreiber now appeals. II. Analysis The duty to arbitrate is prescribed bycontract, and “a party cannot be required tosubmit to arbitration any dispute which he hasnot agreed so to submit.” United Steelworkers v.Warrior & Gulf Navigation Co., 363 U.S. 574, 582(1960). The Teamsters’ grievance is thatSchreiber violated the Memorandum by changingscheduling for carpal tunnel exercises, and bothparties agree that the Memorandum is part of theCBA. Thus, the Teamsters sued to compelarbitration pursuant to Article 10 of the CBA,which provides that disputes arising under theCBA “may be appealed to arbitration” as a matterof right. The district court granted summaryjudgment in favor of the Teamsters, finding thatthis dispute must be arbitrated under Article 10. However, Schreiber contends that Paragraph 5 ofthe Memorandum, which states that “[t]headministration . . . of the Pay for PerformanceProgram is in the exclusive discretion of theCompany and it will not be subject toarbitration,” removes the Teamsters’ grievancefrom the ambit of Article 10 of the CBA.Schreiber argues that “administration” inParagraph 5 covers all the “day-to-day details ofrunning” PP programs, including schedulingchanges like the one about which the Teamstersfiled its grievance. Paragraph 5 specifies thatdisputes over such “administration” are “notsubject to arbitration,” and Schreiber claimsthat this scheduling change of the carpal tunnelexercise period is nonarbitrable as a result. Wereview summary judgment de novo. See Oil,Chemical & Atomic Workers Int’l Union, Local 7-1v. Amoco Oil Co., 883 F.2d 581, 583-84 (7th Cir.1989). The problem with Schreiber’s contraposition isthat Paragraph 2 of the Memorandum limits thescope of Paragraph 5. Paragraph 2 expresslyconfines Schreiber’s authority over scheduling PPprogram training to “reasonable times andfrequencies to afford employees who desire toparticipate in the Company’s pay for performanceprograms the opportunity to successfully completesuch program.” When read in conjunction withParagraph 2, Paragraph 5 cannot be read to vestSchreiber with absolute discretion in scheduling.If Paragraph 5 meant that Schreiber couldunilaterally schedule PP program trainingwhenever it desired, Paragraph 2′s expressrestriction on scheduling to “reasonable timesand frequencies” would retain no meaning. SeeFlorida Polk County v. Prison Health Servs.,Inc., 170 F.3d 1080, 1084 (11th Cir. 1999)(reading a forum-selection clause to be mandatorybecause interpreting it to be permissive wouldrender the clause meaningless under thecircumstances); United States v. Brye, 146 F.3d1207, 1211 (10th Cir. 1998) (interpretingambiguous language in a plea agreement to avoidrendering part of the agreement superfluous); Inre Chicago, Rock Island & Pac. R.R. Co., 860 F.2d267, 271 (7th Cir. 1988) (refusing to interpretan agreement as settling an issue the resolutionof which would be dispositive of another disputethat the agreement expressly excluded fromsettlement). A more sensible interpretation, giving life toboth provisions, is that “administration”includes the management of PP programs, overwhich Schreiber has exclusive, nonarbitrablediscretion, but that training for PP programsmust be scheduled in accordance with Paragraph 2and disputes over such scheduling are arbitrable.Reading the language in Paragraph 5 as broadly asSchreiber urges would render Paragraph 2purposeless, and “a proposed contractualinterpretation that would read out of a contractlanguage obviously important to one of theparties faces and ought to face a distinctlyuphill struggle for judicial acceptance.” In reKazmierczak, 24 F.3d 1020, 1022 (7th Cir. 1994).Instead, Paragraph 2 limits Schreiber’sdiscretion in scheduling and removes grievancesover scheduling of training from the arbitrationexemption in Paragraph 5 for “administration” ofPP programs. Schreiber insists that Paragraph 2 does notapply to this dispute because Paragraph 2 extendsonly to “training schedule[s].” Schreiberexplains that some of the PP programs requiredformal training during which employees needed toattain certification or pass a qualification testfor extra compensation under the respectiveprogram. Paragraph 2, according to Schreiber,embraces these training drills but not the carpaltunnel syndrome prevention exercises, which incontrast to formal training, were ongoingexercises without any completion dates. It isdifficult to determine whether the carpal tunnelsyndrome prevention exercises constituted”training” as contemplated by Paragraph 2 because”training” is not defined in the Memorandum orCBA. The fact that “training” is referencedexpressly in Memorandum descriptions of severalPP programs, but not in the synopsis of the SafeWork program, is unilluminating because thecarpal tunnel syndrome prevention program had notyet been conceived when the parties drafted theMemorandum and therefore is not mentioned as suchin the document. In the face of this contractualambiguity, we apply “a presumption ofarbitrability in the sense that ‘[a]n order toarbitrate the particular grievance should not bedenied unless it may be said with positiveassurance that the arbitration clause is notsusceptible of an interpretation that covers theasserted dispute.’” Local Union 1393 Int’l Bhd.of Elec. Workers v. Utilities Dist. of W. Ind.Rural Elec. Membership Coop., 167 F.3d 1181, 1183(7th Cir. 1999) (quoting United Steelworkers, 363U.S. at 582-83). “[O]nly the most forcefulevidence of a purpose to exclude the claim fromarbitration can prevail, particularly where, ashere, the exclusion clause is vague and thearbitration clause quite broad.” UnitedSteelworkers, 363 U.S. at 585. We cannot say with “positive assurance” thatthis grievance is not covered by the arbitrationclause in Article 10. It is reasonable toconclude that the carpal tunnel preventionexercises were PP program training because thedefinition of “training” comfortably encompassesdaily exercise aimed at preventive goals such ashealth maintenance and injury avoidance.Schreiber expected its employees to perform theseexercises each day to ward off carpal tunnelsyndrome, and even though these exercises had nocompletion or qualification goals, Schreiberconditioned Safe Work Program bonuses onconsistent participation in the carpal tunnelsyndrome prevention program. Guided in part bythe presumption in favor of arbitrability, weinterpret “training” in Paragraph 2 to cover thecarpal tunnel exercise program. Once we establish that Paragraph 2 limitsParagraph 5 and applies to the carpal tunnelexercise program, the rest of this case fallsneatly into place. The Teamsters’ grievancecomplains about an alleged violation ofSchreiber’s promise to schedule PP programtraining at “reasonable times and frequencies”memorialized in Paragraph 2 of the Memorandum andthereby incorporated into the CBA. Thus, thisdispute arises under the CBA within the meaningof “grievance” in Article 9 and is subject toarbitration under Article 10. The Teamsters, however, possess no implicitright to a carpal tunnel exercise program. Anofficial carpal tunnel syndrome preventionprogram was not mentioned in either theMemorandum or the rest of the CBA. Indeed, theprogram did not begin until April 23, 1993,months after the CBA was finalized and ratified.Schreiber never was obligated to institute acarpal tunnel syndrome prevention program, butonce it decided to do so, Schreiber was obligatedto establish a training schedule for the program”at reasonable times and frequencies” because ithad agreed to that stipulation for all PPprograms. Whether Schreiber’s decision toterminate the pre-workday period and requireemployees to perform their exercises during theworkday violates that stipulation is the questionfor arbitration now to resolve. III. Conclusion For the foregoing reasons, we Affirm the decisionof the district court granting the Teamsters’motion for summary judgment.
Local 75, Int’l Bhd of Teamsters v. Schreiber Foods, Inc. In the United States Court of Appeals for the Seventh Circuit Local 75, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Plaintiff-Appellee, v. Schreiber Foods, Inc., Defendant-Appellant. No. 99-3480 Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 1151–Myron L. Gordon, Judge. Argued: February 16, 2000 Decided: May 22, 2000 Before: Kanne, Diane P. Wood and Evans, Circuit Judges.
