LOCAL NO. 149, ETC. v. General Electric Company

• Decision Date: 16 December 1957
• Docket Number: No. 5201.,5201.
• Citation: 250 F.2d 922
• Parties: LOCAL NO. 149 OF The AMERICAN FEDERATION OF TECHNICAL ENGINEERS (AFL), Plaintiff, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

250 F.2d 922 (1957)

LOCAL NO. 149 OF The AMERICAN FEDERATION OF TECHNICAL ENGINEERS (AFL), Plaintiff, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee.

No. 5201.

United States Court of Appeals First Circuit.

Heard October 3, 1957.

Decided December 16, 1957.

Arthur J. Flamm, Boston, Mass., with whom Robert M. Segal, Boston, Mass., was on brief, for appellant.

Warren F. Farr, Boston, Mass., with whom A. Lane McGovern and Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., were on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

We have been much perplexed by this case, involving § 301(a) of the Labor Management Relations Act of 1947 (61 Stat. 156), 29 U.S.C.A. § 185(a).

Appellant Union filed a petition under the United States Arbitration Act, as amended (43 Stat. 883, 61 Stat. 669, 68 Stat. 1233, 9 U.S.C.A. § 1 et seq.), and under § 301 of the Labor Management Relations Act (61 Stat. 156), seeking a decree of specific performance to compel the employer to perform an agreement to arbitrate, as provided in a collective bargaining agreement executed on November 1, 1955, to be operative for a term of five years, with an automatic renewal provision thereafter from year to year.

An understanding of the controversy here requires an examination of several articles of the collective bargaining agreement.

Article VII, entitled "Wage Rates," contains the following provisions:

"* * * * * *

"2. Job classifications, job rates and step rates are as shown on Exhibit `B\'.

"* * * * * *

"4. When an employee is hired or transferred through the Company Personnel Department and assigned to a job within the bargaining unit, he will be given a card showing his job classification, starting rate, job rate, and rate of progression, if any, applicable to the job for which he is hired or to which transferred. In addition, the employee\'s new supervisor will explain the general scope of his duties and responsibilities on the new job. Similarly, the employee will be given such information when re-assigned to another job within the bargaining unit.

"5. (a) Rates paid will be on steps. Job rates will be designated by grade.

"(b) The minimum starting rate for an inexperienced employee will be three steps below the Grade 9 job rate.

"(c) Employees will progress on steps, from the starting rate to the Grade 9 job rate, as follows:

6 months after hiring — increase one step

After each additional 6 months — increase one step

"(d) An employee who is receiving the Grade 9 job rate and is assigned to a Grade 11 job, or higher, will be given a one step increase at the end of 6 months dating from assignment to such Grade 11 or higher job.

"(e) Any further increase in rate, up to the job rate for his job, shall be based solely on the employee\'s performance on the job.

"(f) Subject to the foregoing provisions of this Section 5, the job rate shall be paid for normal performance.

                                           "EXHIBIT `B'
                               "Job Rates and Progressive Step Rates
                  "Grade  8-15-55    9-15-56     9-15-57     9-15-58     9-15-59
                    14    $130.13    $134.03     $138.05     $142.85     $147.79
                    13     120.27     123.88      127.60      132.03      136.60
                    12     110.93     114.25      117.68      121.77      125.99
                    11     102.58     105.65      108.82      112.61      116.50
                    10      93.56      96.37       99.26      102.71      106.27
                     9      86.55      89.15       91.82       95.01       98.30
                            79.78      82.17       84.63       87.58       90.61
                            74.99      77.24       79.56       82.32       85.17
                            70.92      73.04       75.23       77.85       80.54"
                

It will be observed that this so-called Exhibit "B" in Art. VII contains no detailed job specifications setting forth the types of duties falling into grades 14, 13, etc. There is no language in the collective bargaining agreement to be interpreted and applied for the purpose of determining whether the duties performed by a particular employee entitle him to be classified in any particular "grade," carrying with it a corresponding wage rate.

Article XIV, entitled "Grievance Procedure," established a conventional three-step procedure for adjustment of employee grievances between the Union and the Company, by which negotiation was to continue at progressively higher levels if an agreement was not reached.

Article XV, entitled "Arbitration," read in full as follows:

"1. Any grievance which involves the interpretation or application of this Agreement, and which remains unsettled after having been fully processed pursuant to the provisions of Article XIV shall be submitted to arbitration upon request of either the Union or the Company provided such request is made within 90 days after the decision of the Company has been given to the Union pursuant to Article XIV. In each case, the arbitrator shall be selected and the arbitration proceeding conducted pursuant to procedures mutually satisfactory to the Company and the Union.

"2. The award of an arbitrator so selected upon any grievance so submitted to him shall be final and binding upon all parties to this Agreement. The arbitrator shall have no authority to add to, detract from, or in any way alter the provisions of this Agreement. In addition, it is specifically agreed that no arbitrator shall have the authority to establish a wage rate or job classification, or authority to enter an award pertaining to Article XIX, and that no provision of this Agreement or other agreements between the parties shall be subject to arbitration pertaining in any way to the establishment, administration, interpretation or application of Insurance or Pension Plans in which employees covered by this Agreement are eligible to participate."

Article XXVI, entitled "Management Authority," contains provisions which might perhaps be deemed to have added little or nothing to what would otherwise be implied from the other terms of the collective bargaining agreement. The article is as follows:

"Subject only to any express limitations provided in this Agreement or in any other written agreement between the Company and the Union, the Company retains the exclusive right to manage its business including (but not limited to) the right to determine the methods and means by which its operations are to be carried on, to direct the work force and to conduct its operations in a safe and effective manner.

"This Article does not modify or limit the rights of the parties or of the employees under any other provisions of this Agreement or under any other written agreement between the Company and the Union, nor will it operate to deprive employees of any wage or other benefits to which they have been or will become entitled by virtue of an existing or future written agreement between the Company and the Union. Neither will this Article be used to limit or modify the rights of the Union to process grievances pursuant to Article XIV."

The petition filed by the Union in the present case, after numerous formal allegations, set forth the following:

"On or about November 7, 1955, the Union filed grievances with the Company alleging that the jobs performed by employees, Paul Nolan, Fred Lang, Robert Tivey and Ashley Corporon were incorrectly graded. The Union alleged that under the grades established by the Company and set forth in Article VII of the contract, the duties performed by these employees came within Grade 13 and that the Company had not properly applied the contract in its payments to said employees."

The petition went on to allege that these grievances had been processed in accordance with the procedures set forth in Art. XIV of the contract; that after such grievance procedure had been exhausted without coming to any agreement, the Union on April 23, 1956, requested the Company to proceed with an arbitration pursuant to § 1 of Art. XV of the contract; that the Company on May 1, 1956, notified the Union that it would not submit said grievances to arbitration and had continually thereafter adhered to its refusal to arbitrate; that the Company's refusal to arbitrate, as aforesaid, "was and is a violation and breach of the collective bargaining agreement between the Union and the Company."

The prayer of the petition was that the Company "be specifically ordered to perform its agreement to arbitrate by submitting to arbitration the grievances involving Paul Nolan, Fred Lang, Robert Tivey and Ashley Corporon."

The district court, on December 3, 1956, after a hearing entered a judgment dismissing the petition for an order to compel arbitration.

In an accompanying memorandum the district court, referring to the provision in § 2 of Art. XV, said the following:

"It seems to me that the condition in this Section, `It is specifically agreed that no arbitrator shall have the authority to establish a wage rate or job classification * * *\' places a distinct limitation upon the arbitrator that covers the situation in hand.

"Apparently the jobs performed by the employees in question were newly created jobs, and since the contract makes no provision for the Union to be heard on the question of such grading, it seems to me that the question of grading these positions is not open to arbitration.

"From the foregoing I conclude and rule that the petition for an order to compel arbitration must be and is dismissed."

On this appeal by the Union from the judgment dismissing its petition, we are constrained to affirm the judgment of the district court.

We are aware of a viewpoint urged in responsible quarters that the interests of effective labor arbitration would best be served by committing to the arbitrator in the first instance the question of arbitrability, that is, the question whether there is any issue to be arbitrated under the collective bargaining agreement. It is said that a collective bargaining contract is a very special type of document, in...