FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 29, 2012

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    SUNCOR ENERGY (U.S.A.), INC.,

                Plaintiff-Appellant,

    v.                                                    No. 11-1344
                                                (D.C. No. 1:11-CV-00375-RPM)
    UNITED STEEL, PAPER AND                                (D. Colo.)
    FORESTRY, RUBBER,
    MANUFACTURING, ENERGY,
    ALLIED INDUSTRIAL AND
    SERVICE WORKERS
    INTERNATIONAL UNION,
    AFL-CIO, CLC; USW LOCAL
    UNION 12-477,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges.


         Suncor Energy (USA), Inc. (Suncor) appeals the district court’s denial of

its summary judgment motion and grant of the summary judgment motion filed by



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union, AFL-CCIO, CLC, and USW

Local Union 12-477 (the Union). Suncor sought a declaratory judgment that a

grievance filed by a Suncor employee was not subject to arbitration. The Union

filed a cross-complaint requesting the court find that the grievance was subject to

arbitration. Both parties filed summary judgment motions on the undisputed

facts. The district court granted the Union’s motion, finding that the underlying

dispute in the grievance involved questions of contract interpretation and that the

parties had agreed to arbitrate questions of contract interpretation. We affirm.

                                    Background

      Suncor employee Jeffrey Packer applied for a “special assignment” position

which required his supervisor’s permission. His supervisor denied permission on

the basis that Parker was the only reliability technician responsible for Suncor’s

fire water safety system at the time because the employee who could provide

backup help was on leave. When his application was denied, Parker filed a

grievance (the Grievance) claiming the denial was in violation of an

anti-discrimination provision in the governing collective bargaining agreement

(the CBA).

      The CBA provides for a multi-step grievance procedure. The Union is

Parker’s exclusive bargaining representative. The CBA states that if the Union is

dissatisfied with Suncor’s response at the final step of a grievance procedure, it

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shall notify Suncor of its desire to submit the matter to arbitration. The Union

did so with Parker’s Grievance. In response, Suncor denied the request and filed

suit in district court seeking a declaratory judgment that the Grievance was not

arbitrable. The Union counterclaimed to compel arbitration. Both parties later

filed motions for summary judgment.

      Three provisions of the CBA are relevant here. First, Article XXIII (the

Management Rights Clause), relied upon by Suncor in its complaint for

declaratory judgment. This provision states that certain management decisions

are not arbitrable:

      The responsibilities of [Suncor] include, but are not limited to, the
      right to manage, direct, supervise its plant and businesses including
       . . . its right . . . to define, change, and modify work assignments and
      classifications; . . . to transfer, promote, or demote employees . . .
      and to require employees to observe reasonable rules and regulations
      for the safe and efficient operation of the plant.

      The exercise of the responsibilities of the Company may be grieved,
      but shall not be subject to arbitration or mediation provided that the
      exercise of such rights, are not in violation of the express terms of
      this Agreement.

Aplt. App. at 144 (emphasis added).

      Second, Article XXV (the Anti-Discrimination Provision), cited by Parker

in his Grievance, which states:

      There shall be no discrimination of any kind against any employee by
      any supervisor, manager, or other person in the employ of [Suncor]
      or by the Union . . . .




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      The Company and the Union agree to follow a policy of
      non-discrimination on the basis of race, color, religion, national
      origin, age, sex, handicap, marital status, and the Vietnam Veteran
      Readjustment Act.

(emphasis added).

      And third, Section 4 of Article V (the Arbitration Provision), which states:

      The only grievances which shall be arbitrable shall be those meeting
      the following conditions:

      a. Grievances arising between the Union and [Suncor] relating only
      to the interpretation or performance of this Agreement which cannot
      be adjusted by mutual agreement.

      b. The grievance specifically designates the express provision or
      provisions of this Agreement alleged to have been violated, and the
      manner in which it or they have been violated.

(emphasis added).

      Parker asserted in his Grievance that denying him the assignment

discriminated against reliability technicians because they rarely have backup help.

He claimed this violates the Anti-Discrimination Provision prohibiting

discrimination of “any kind.” Suncor disagreed with this interpretation of the

Anti-Discrimination Provision. It asserted that the assignment denial did not

violate an “express” term of the CBA, a condition of arbitrability in the

Management Rights Clause, and that the Grievance did not designate an “express

provision,” a condition of arbitrability in the Anti-Discrimination Provision.

Suncor argued that the only “express” terms in the Anti-Discrimination Provision

are to race, color, religion, national origin, age, sex, handicap, marital status, or

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status under the Vietnam Veteran’s Readjustment Act. Because Parker never

asserted discrimination on those grounds, Suncor argued that the

assignment-denial was a non-arbitrable exercise of its right under the

Management Rights Provision to “modify work assignments.”

      The district court ruled that the parties’ dispute as to the meaning of the

Anti-Discrimination Provision presented “questions of interpretation of the CBA

subject to arbitration under [the Arbitration Provision].” Dist. Ct. Order at 3,

Doc. 25, No. 1:11-cv-00375-RPM (D. Colo. Jul. 12, 2011) (unpublished) (the

Order). It further ruled that the question of whether the Grievance sufficiently

designated an “express” term or provision under the CBA was also a matter of

contract interpretation subject to arbitration.

                                        Analysis

      Suncor raises two issues on appeal. First, it contends that the district court

erred in concluding that the substantive issue of arbitrability was to be decided by

an arbitrator, not the district court. It cites to the well-established rule that “the

question of arbitrability–whether a collective-bargaining agreement creates a duty

for the parties to arbitrate the particular grievance–is undeniably an issue for

judicial determination[ u]nless the parties clearly and unmistakably provide

otherwise.” AT&T Techs., Inc. v. Commc’ns Workers, 

, 649 (1986).

Second, it requests this court order the district court to enter judgment in its favor




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and declare that the Grievance is not arbitrable under the Management Rights

Clause.

      Both parties agree that the CBA does not clearly and unmistakably delegate

the gateway question of arbitrability to an arbitrator. Aplt. App. at 30, 101.

Suncor’s argument on appeal is that the district court should have resolved that

issue by also resolving the underlying substantive arbibrabilty issue within the

merits of the Grievance. Suncor’s argument fails to differentiate between the

gateway issue of arbitrability, which is subject to judicial determination, and the

underlying substantive issue of arbitrabilty within the merits of the Grievance

dispute, which the district court correctly left for the arbitrator to decide.

      This is precisely the confusion the Supreme Court cautioned against in

AT&T. There, the Court held that it was the court’s duty to interpret the

collective bargaining agreement to determine whether the parties intended to

arbitrate the type of grievance at issue, but for the arbitrator to determine the

relative merits of the parties’ substantive interpretation of the agreement. 

As AT&T makes clear, arbitrabilty does not depend upon the merits of the

parties’ dispute, even when that underlying dispute also involves a contractual

issue of arbitrability. “[T]he judicial inquiry required to determine arbitrability is

much simpler”; and is “‘strictly confined’ to whether the parties agreed to submit

disputes over the meaning of [a collective bargaining provision] to arbitration.”




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(J. Brennan concurring) (citing United Steelworkers v. Warrior & Gulf

Navigation Co., 

, 582 (1960)).

      Here, the district court did just what the AT&T decision directed it to do: it

decided the gateway issue of arbitrability. It ruled that the dispute in the

Grievance was “subject to arbitration” under the Arbitration Provision, in which

the parties agreed to arbitrate grievances relating to the interpretation of the CBA,

because the merits of the Grievance centered on the meanings and interpretation

of the Anti-Discrimination Provision and the “express provision” requirement.

Order at 3.

      Both Suncor and the Union agree that the heart of the Grievance turns on

questions of how to interpret the contractual terms of the CBA. See Aplt. Br. at

17 and Aplee. Br. at 15. That substantive arbitrability issue depends on whether

denying assignments to employees who lack backup help is discrimination “of any

kind” under an “express” term or provision” of CBA. In accordance with the

terms of the Arbitration Provision, the district court held that the CBA obligates

Suncor to arbitrate those particular contract interpretation issues. See Order at 3.

The district court ruled that “[t]he Clerk shall enter judgment declaring that the

arbitrability of the Parker [G]rievance is to be determined by the arbitrator and

compelling [Suncor] to proceed with arbitration under the procedures of the

CBA.” 

It is clear from the second half of that sentence that the district

court fulfilled its duty to make a judicial determination as to the gateway

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procedural issue of arbitrability, ruling in favor of arbitration, and having so

ruled, appropriately left the second, substantive arbitrability issue for the

arbitrator to decide. In making that “strictly confined” determination, the court

was not required “even to consider which party is correct with respect to the

meaning” of the underlying disputed provisions, even when that too involves

arbitrability issues. See 

(J. Brennan, concurring).

      Finding no error, we affirm the district court’s ruling that the contractual

interpretation issue in the Grievance is subject to arbitration under the CBA’s

Arbitration Provision. Suncor’s request that this court order the district court to

declare that the Grievance is not arbitrable is, therefore, denied as moot.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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