Trailways of New England, Inc. v. Amalgamated Ass'n

• Citation: 353 F.2d 180
• Decision Date: 02 December 1965
• Docket Number: No. 6591.,6591.
• Parties: TRAILWAYS OF NEW ENGLAND, INC., Appellant, v. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, DIVISION 1318, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

353 F.2d 180 (1965)

TRAILWAYS OF NEW ENGLAND, INC., Appellant, v. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, DIVISION 1318, Appellee.

No. 6591.

United States Court of Appeals First Circuit.

December 2, 1965.

Morris J. Levin, Washington, D. C., with whom Joseph J. Hurley, Boston, Mass., Richard R. Paradise, Betty Southard Murphy, Washington, D. C., Cargill, Masterman, Redmond & Cahill, Boston, Mass., and McInnis, Wilson, Munsion & Woods, Washington, D. C., were on the brief, for appellant.

Earle W. Putnam, Washington, D. C., with whom Arthur J. Flamm, John D. O'Reilly, III, and Segal & Flamm, Boston, Mass., were on the brief, for appellee.

Before ALDRICH, Chief Judge, and HASTIE^* and McENTEE, Circuit Judges.

ALDRICH, Chief Judge.

This case raises again the question of court intervention in labor arbitration, sought on the ground that the arbitrators have nothing properly before them. In another decision this day we have held that an objecting party could not be heard until the arbitrator had decided against it. Camden Industries, Inc. v. Carpenters Local Union No. 1688, 1 Cir., 1965, 353 F.2d 178. In that case we were unable to say "with positive assurance" that there could be nothing to be arbitrated. Appellant asserts that in the present case positive assurance exists.

The dispute between the parties originated in a strike protesting the suspension of an employee for alleged insubordination. The facts are set forth in our earlier opinion, Trailways of New England, Inc. v. Amalgamated Association of Street Railway Employees, 1 Cir., 1965, 343 F.2d 815, ordering the initial arbitration. Briefly, the strike was called in spite of the employer's requests that the union follow the grievance procedure provided for in the collective bargaining agreement. The employer thereupon discharged all striking employees and purported to rescind the agreement. At this point the union invoked the grievance procedure. The employer objected, not unnaturally feeling that the union had got religion too late. We held, however, that the matter must go to arbitration.

The arbitration board, hereinafter the board, first considered whether the strike was a violation of the agreement. It determined that it was, because the union had agreed to arbitrate before striking. The employer, contrary to the board, thereupon concluded that there was nothing further to arbitrate, and instituted the present action in the district court for a declaratory judgment to that effect. That court denied relief without opinion, and the employer appeals.

The agreement provided that "all grievances arising hereunder, including discharge, * * * shall be disposed of" by a procedure culminating in arbitration, the written decision of a majority of the board to "be final and binding on the parties to the dispute." It also provided that employees could be discharged "for cause."

It is the position of the union that as to each striker the board can determine "whether or not the discharge was for `cause' within...