Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.international Union of Operating Engineers Local No. 826,afl-cio, Plaintiff-appellant, v. Navajo Refining Company, a Delaware Corporation, Defendant-appellee, 931 F.2d 62 (10th Cir. 1991)

Plaintiff International Union of Operating Engineers Local No. 826, AFL-CIO (Union) brought suit in the federal district court for the District of New Mexico against Navajo Refining Company (Company) claiming that the Company breached collective bargaining agreements by failing to notify the Union of the adoption of an employee stock option plan for the Company's nonunion employees. This appeal¹  is from an order of the district court finding that the claim of the Union, although styled as an action for breach of certain collective bargaining agreements, was actually an unfair labor practice claim preempted by the Labor Management Relations Act. International Union of Operating Engineers Local No. 826, AFL-CIO v. Navajo Refining Co., No. 89-0941JC, slip op. at 1 (D.N.M. Sept. 25, 1990) (District Court Order). We review the district court's jurisdictional ruling de novo. Cf. Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1375 (10th Cir. 1989) (personal jurisdiction).

The Union concedes that if there has been no breach of the collective bargaining agreement the district court was without jurisdiction in this matter. Union's Opening Brief at 16. For the district court to have jurisdiction, an unfair practice claim must be a collateral issue attached to a genuine section 301(a) dispute.²  Trustees of the Colo. Statewide Iron Workers (Erector) Joint Apprenticeship & Training Trust Fund v. A & P Steel, Inc., 812 F.2d 1518, 1526 (10th Cir. 1987). We agree with the district court that this complaint at most alleges an unfair labor practice and thus is within the exclusive jurisdiction of the National Labor Relations Board. New Mexico Dist. Council of Carpenters v. Mayhew Co., 664 F.2d 215, 217 (10th Cir. 1981).

The background facts of this matter are undisputed. In 1985, as part of a general capital restructuring, a benefit plan entitled "Holly Corporation Employee Stock Ownership Plan" (ESOP) was established by the Company's parent, Holly Corporation, to become effective on August 1, 1985. The ESOP, like its predecessor stock ownership plan, specifically excluded employees covered by a collective bargaining agreement from participation eligibility. Rec. Vol. II, Doc. 5, Exhibit A [Holly Corporation Tax Credit Employee Stock Ownership Plan] at 2; id. [Holly Corporation Employee Stock Ownership Plan as Amended and Restated] at 12. That exclusion notwithstanding, the Union argues that the terms of its collective bargaining agreements required the Company to give the Union notice of the establishment of the ESOP.

The Union and the Company were parties to two separate collective bargaining agreements relevant to this dispute, one with the trucking division, Rec. Vol. I, Doc. 4, Exhibit F, and another with the balance of the Company's union employees. Id. at Exhibit C. The material portions of the agreements are substantially the same and provide as follows:

BENEFIT PLANS: The Company agrees to administer for the employees covered by this Agreement and during its term, the following employee benefit plans:

Military Leave

Supplemental Disability Award

Accidental Death & Dismemberment

Thrift Plan

Long Term Disability Insurance

Home & Hospital Medical Expense

Retirement Plan

Short Term Disability Pay Plan

Group Life Insurance

Occupational Accidental Insurance

Supplemental Life Insurance Plan.

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CHANGES IN BENEFIT PLANS: In the event the Company desires to increase the cost or to decrease the benefits of any such plans, it will present such changes to the Union at least thirty (30) days prior to the proposed effective date of such changes with a complete explanation of the reasons for such changes.³ 

Id. (emphasis added).

The Union argues that this provision obligated the Company to inform the Union of the creation of the ESOP for the nonunion employees. We cannot agree. It is obvious that only the benefits listed in the agreements were subject to the thirty-day notice provision and equally obvious that the ESOP was not among the listed benefits.⁴  The district court was therefore correct in holding that there had been no breach of this section of the collective bargain agreements.⁵ 

The Union further argues that the Company breached Article X of the collective bargaining agreements. Article X prohibits the Company from discriminating against any employee because of his or her affiliation with the Union.⁶  The Union argues that by establishing an ESOP available only to nonunion employees, the Company discriminated against its union employees because of their union membership. There is no evidence, however, that the Company attempted to keep the fact of the ESOP confidential or that the Company ever attempted to prohibit the Union from bargaining for inclusion of the ESOP in the list of benefits included in its collective bargaining agreements. Neither is there evidence of a history of collective bargaining between the Union and the Company demonstrating that this clause was intended to mandate identical benefits for both union and nonunion employees. Cf. Syufy Enters. v. Northern Cal. State Ass'n of IATSE Locals, 631 F.2d 124, 126 (9th Cir. 1980), cert. denied, 451 U.S. 983 (1981) (provisions of a collective bargaining agreement must be viewed in light of the history of the negotiations giving rise to them). We hold, therefore, that the creation of the ESOP for nonunion employees did not breach the nondiscrimination clauses of the collective bargaining agreements.

The threshold issue here is whether the collective bargaining agreements required the Company to give notice of the creation of the ESOP. Since we have concluded that no such notice was required under the facts before us, there was no breach of the notice provisions of the agreements and thus no jurisdiction in the district court. Whether the Union had either actual or constructive notice is irrelevant.⁷ 

The Union's motion for costs and attorneys' fees incurred in perfecting this appeal is denied. The judgment of the United States District Court for the District of New Mexico is AFFIRMED.⁸  The mandate shall issue forthwith.