Howard Elec. Co. v. International Bro. of EW Loc. U. No. 570

Decision Date17 February 1970
Docket NumberNo. 22749.,22749.
Citation423 F.2d 164
PartiesHOWARD ELECTRIC CO., a Colorado corporation, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 570 and International Brotherhood of Electrical Workers, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Bennett S. Aisenberg (argued), of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., Shimmel, Hill, Kleindienst & Bishop, Phoenix, Ariz., for appellant.

Ira Schneier (argued), Tucson, Ariz., for appellees.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge.

Howard Electric Company filed this action for damages under Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185 (1964). The complaint alleged that the I.B.E.W., through its local union, ordered and coerced employees of the company to engage in a walkout in violation of a collective bargaining contract provision that "there shall be no stoppage of work * * * by strike" during the term of the agreement.

The union filed a motion to stay the proceedings in the district court pending arbitration in accordance with the grievance procedure of the collective bargaining agreement. In an affidavit attached to the motion, the business manager for the local union admitted that some employees had engaged in a walkout because of a dispute over the referral of employees, but claimed that the walkout was without sanction, action, or fault of the local union. The business manager specifically denied that the union instigated the walkout or encouraged its members not to work for the company.

After a hearing, the district court granted the union's motion to stay pending arbitration and the company appeals. We affirm.

The issues, as we see them, are twofold: First, whether there was a "dispute" between the parties; and, second, if so, had the parties consented to having the dispute resolved by arbitration.

I.

The company takes the position that, because the union admitted there was a walkout, there was no longer a "dispute" over a matter relating to the agreement. However, during the hearing in the court below, the company admitted that the union would not be liable for violating the no-strike clause unless it was shown that the union instigated the strike. As mentioned above, the union denied instigating or encouraging the strike.

We are unable to accept the company's embellishment of the union's concession that some of the employees did engage in a walkout. The union, by denying responsibility for the walkout, also denied a violation of the no-strike clause. Hence, there was a dispute between the company and the union over whether a breach of the no-strike clause had occurred. See Pietro Scalzitti Co. v. International Union of Operating Engineers, Local No. 150, 351 F.2d 576, 578 (7th Cir. 1965).

II.

In determining whether this particular dispute was subject to arbitration, only two provisions of the collective bargaining contract are relevant. Article I, Section 4, provides:

"There shall be no stoppage of work either by strike or lockout because of any proposed changes in the Agreement or disputes over the matters relating to the Agreement. All such matters must be handled as stated herein."

Section 6 of Article I provides:

"All grievances or questions in dispute shall be adjusted by the duly authorized representatives of each of the parties to this Agreement. * * *"

Article I thereafter sets forth the proper method of presenting a grievance or question in dispute, first through a Joint Conference Committee and, failing agreement there, to an industry committee.

The rules of construction governing the arbitrability of a particular issue in collective bargaining contracts are now well established. Arbitration is consensual and it is for the courts to decide if the reluctant party has given up its right to pursue any remedy it desires by virtue of the arbitration provisions in the contract. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). Where doubt exists as to the scope of the particular provision, a broad construction is favored to carry out the parties' presumed intent and the national labor policy favoring the settlement of labor disputes by arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). "An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the...

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8 cases
  • Dryer v. Los Angeles Rams
    • United States
    • California Supreme Court
    • December 5, 1985
    ...Inc., supra, 508 F.2d at p. 119; Intern. Ass'n of Machinists v. Howmet, supra, 466 F.2d at p. 1256; Howard Elec. Co. v. Intern. Broth. of Elec. Workers (9th Cir.1970) 423 F.2d 164, 166.) Federal case law, however, in no way suggests that a court may deny a motion to compel arbitration on th......
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    ...v. United Brotherhood of Carpenters and Joiners, 596 F.2d 126, 128-129 (5th Cir. 1979); Howard Electric Co. v. International Brotherhood of Electrical Workers, 423 F.2d 164, 165-66 (9th Cir. 1970); Los Angeles Paper Bag Co. v. Printing Specialties and Paper Products Union, 345 F.2d 757, 759......
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    ...Inc. v. Bakery Workers Local 50, supra note 20, 370 U.S. at 259, 82 S.Ct. at 1349, 8 L.Ed.2d at 478; Howard Elec. Co. v. Electrical Workers Int'l, 423 F.2d 164, 167 (9th Cir. 1970). 'Nothing in the agreement indicates an intention to except from (the employer's) agreement to arbitrate dispu......
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    ...of the CBA in which Plaintiff specifically agrees to be bound by an arbitration clause. Howard Electric Company v. Int'l Brotherhood of Electrical Workers, Local 570, 423 F.2d 164, 166 (9th Cir.1970) (finding that "[arbitration is consensual and it is for the courts to decide if the relucta......
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