* Judge Higginbotham heard oral argument in this case but had

to recuse. Accordingly the case is being decided by a quorum. S ee

28 U.S.C. §46(d). UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 01-30012

__________________________

BATON ROUGE OIL AND CHEMICAL WORKERS UNION,

Plaintiff-Appellee,

v.

EXXONMOBIL CORPORATION, Previously doing business as Exxon

Company, USA, a division of Exxon Corporation and Exxon Chemicals

Americas, an Operating Division of Exxon Chemical Company, a

Division of Exxon Corporation, Baton Rouge, Louisiana,

formerly known as Exxon Company USA,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court for the

Middle District of Louisiana

____________________________________________________ April 23, 2002

Before DeMOSS and BENAVIDES, Circuit Judges. *

DeMOSS, Circuit Judge:

This is an appeal of an order compelling arbitration of a

grievance filed purs u ant to a collective bargaining agreement

(CBA). Because we conclude that the CBA at issue does not require2 Following his dismissal, Melancon filed a complaint with

the Department of Labor’s Veteran’s Employment and Training Service

(VETA) under the Uniformed Services Employment Rights Act of 1994,

38 U.S.C. § 4301. However, Melancon’s allegation that his missed

on-the-job training contributed to his termination was rejected by

VETA, which subsequently notified ExxonMobil that it had concluded

its investigation and closed its file after finding no violation.

2 the defendant, ExxonMobil Corporation, to arbitrate grievances

protesting the discharge of probationary employees, we reverse the

district court’s order compelling arbitration.

I.

ExxonMobil and Baton Rouge Oil and Chemical Workers Union

signed a CBA covering certain employees at ExxonMobil’s Baton Rouge

facilities. The CBA at issue, which extended from February 1999

through March 2002, governed the terms and conditions of employment

for bargaining unit members.

ExxonMobil hired Michael Melancon as a special laboratory

technician apprentice on March 16, 1998, and discharged him on

February 11, 1999. It is undisputed that he was a member of the

bargaining unit and that he was a probationary employee for

purposes of the C BA. However, the parties do dispute the reason

for his termination. The company claims that he was discharged for

i ncompetence, while Melancon and the Union claim that he was

discharged because his participation in a National Guard exercise

caused him to lose critical training. 23

Melancon filed a grievance with ExxonMobil complaining about

his discharge. After the Company rejected his claim and refused to

arbitrate, the Union brought this action under the Labor Management

Relations Act, 29 U.S.C. § 185(a), seeking to compel arbitration.

Both parties moved for summary judgment on the arbitrab ility of

this grievance. The district court granted the Union’s motion and

entered an order compelling arbitration. ExxonMobil appeals here.

II.

The sole issue presented is whether the CBA requires

ExxonMobil to arbitrate t he reasonableness of a probationary

employee’s discharge. The relevant provisions of the CBA provide:

Article 144 Unlawful Provision is Invalid :

If this Agreement requires a party to do anything which

is prohibited by law, the requirement is invalid. In

this connect ion, law means federal, state or municipal

law or a rule, regulation or order issued by a competent

government authority or regulative or administrative

body.

Article 251 What grievances are Arbitrable :

An arbitrable grievance is a good faith claim by one

party that the other party has violated a written

provision of this agreement. If the claim is disputed,

the issue is either

(1) The interpretation of the provision, or

(2) The facts, or both.

Article 1121 General Discipline :

(a) The Company may discipline an employee only for

cause.

(b) Even though an employee does not commit a posted

offense, his conduct or work performance may still be

cause for discipline. However, the Company may not

discipline him without giving him advance notice and,4

where practicable, an opportunity to correct the

situation.

Article 1122 Penalty :

When the Company disciplines an employee, it may impose

a ny penalty which it deems appropriate. But there is

this exception when the Company disciplines an employee

other than a probationary employee: If the penalty

imposed by the Company is discharge, the decision making

leave, or suspension in excess of five work-days, and a

claim is made that it is not reasonable, then the

reasonableness of the penalty is an arbitrable grievance.

Article 1141 Termination :

(a) The Company may terminate a probationary employee at

will.

(b) A probationary employee is one whose Total Service after

the date of last employment or reinstatement does not exceed

one year.

Article 1151 Exercising Rights :

Neither party shall exercise any righ t under this

agreement i n an arbitrary manner, but each party shall

e xercise its right in a reasonable manner and i n good

faith.

III.

Summary judgment is proper under Rule 56 of the Federal Rules

of Civil Procedure if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” F E D

. R. C IV

. P. 56(c). Under Rule 56, summary

j udgment must be entered against “a party who fails to make a

showing sufficient to es tablish the existence of an element

essential to that party’s case, and on which that party will bear5

the burden of proof at trial.” L ittle v. Liquid Air Corp.

, 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex v. Catrett

,

477 U.S. 317, 322 (1986)). In a bench trial, the court has

“somewhat greater discretion to consider what weight it will afford

the evidenc e” than it would in a jury trial. I n re Placide Oil

Co. , 932 F.2d 394, 397 (5th Cir. 1991). We review the lower

court’s grant of summary judgment de novo

. S ee Carpenters Dist.

Council v. Dillard Dep’t Stores

, 15 F.3d 1275, 1281 (5th Cir.

1994).

IV.

Due to its inherently contractual nature, arbitration may be

ordered only for a dispute that the parties have agreed to

arbitrate. S ee AT&T Techs., Inc. v. Communication Workers of Am.

,

475 U.S. 643, 648-49 (1986). ExxonMobil can therefore be compelled

to arbitrate only those disputes contemplated by the CBA. As such,

the sole inquiry before us is whether Michael Melancon’s discharge

is an arbitrable grievance under the CBA.

ExxonMobil first directs our attention to Article 1141 of the

CBA, which states that probationary employees are “at-will”

employees. At-will employees in Louisiana may be discharged with

or without cause, and in no case is the employer liable for

wrongful discharge. S ee Stevenson v. Lavalco, Inc.

, 669 So. 2d6

608, 611 (La. App. 2d. Cir. 1996); Hoover v. Livingston Bank , 451

So. 2d 3, 4-5 (La. App. 1st Cir. 1984).

The Union counters that Article 1121 allows an employee to be

disci plined only for cause. While this may be so, Article 1122,

which discusses r ights of the disciplined employee, explicitly

bestows an arbitration ri ght only for non-probationary employees

facing certain specifically enumerated sanctions. Thus, while all

employees have some remedy against wrongful discharge (i.e.,

grievance procedures), arbitration is n ot a remedy afforded

probationary employees in such cases. This is consistent with

Artic l e 1141's “at will” distinction between probationary and

permanent employees.

The Union also points to Article 1151's admo nishment that

“[n]either party shall exercise any right under this agreement in

an arbitrary manner, but each party shall exercise its right in a

reasonable manner and in good faith.” Because Article 251 provides

that “an arbitrable grievance is a good faith claim by one party

that the other party has violated a written provision of the

agreement,” the Union ar gues that the reasonableness of the

decision to discharge Melan con is “an arbitrable grievance.”

H owever, we decline to rely on this catchall phrase to create a

right of arbitration that clearly does not exist under the terms of

the CBA, and which would explicitly conflict with the CBA’s express

provision allowing ExxonMobil to discharge probationary employees7

“at will.” Clearly, if o nly non-probationary employees are allowed

to arbitrate serious sanctions or discharge under Article 1122,

then it follows that there m ust be s ome employees covered by the

CBA that may not arbitrate sanctions or discharge. Because

probationary employees have the fewest rights under the CBA of all

employees in that they are the only ones that can be terminated at

will, it is evident that the CBA does not contemplate arbitration

of termination decisions regarding probationary workers. This is

because if permanent employees could be terminated in the same

manner, or if probationary employees had the same recourse as their

permanent counterparts following termination, Article 1141

(allowing at-will discharge of probationary employees) and Article

1122 (permitting non-probationary employees to arbitrate the

reasonableness of certain articulated serious sanctions, including

discharge) would both be rendered meaningless. S ee, e.g., Texas E.

Transmission Corp. v. Amerada Hess Corp.

, 145 F.3d 737, 741-42 (5th

Cir. 1998) (“[U]nder Louisiana law[,] . . . [c]ontract provisions

susceptible to different meanings should be interpreted to avoid

neutralizing or ignoring any of them or treating them as

surplusage.”).

Finally, the Union relies on Article 144, which, it asserts,

prohibits one party to the CBA from performing unlawful acts under

the CBA. However, the Article’s actual text reveals that, contrary

to the Union’s assertions, Article 144 does not pro hibit the8

Company from acting in violation of the law; rather, it prohibits

the Company from being forced to act in violation of the law by a

provision of the CBA. Specifically, it states that “[i]f this

Agreement requires a party to do anything which is prohibited by

law, the requirement is invalid.” We do not read this provision as

providing a basis for compelling Ex xonMobil to arbitrate the

Union’s claim that Melancon’s discharge was unlawful.

V.

It is a f undamental axiom of contract interpretation that

specific provisions control general provisions. See R ESTATEMENT

(S E COND ) OF C ONTRACTS § 203(c). And, as the Union notes, we must

“honor the presumption that parties to a contract intend every

clause to have some effect.” Chapman v. Orange Rice Milling Co.

,

747 F.2d 981, 983 (5th Cir. 1984). There is simply no way to give

effect to Article 1122 and Article 1140 while simultaneously

allowing the Union to proceed to arbitration. Accordingly, because

we conclude that the CBA cannot fairly be interpreted to allow the

Union to arbitrate the dismissal of Michael Melancon, the judgment

of the district court is REVERSED.