PEERLESS PR. MET. CORP. v. INTERNATIONAL U. OF E., R. & MW, 71-1198.

• Citation: 451 F.2d 19
• Decision Date: 08 November 1971
• Docket Number: No. 71-1198.,71-1198.
• Parties: PEERLESS PRESSED METAL CORPORATION, Plaintiff, Appellant, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

451 F.2d 19 (1971)

PEERLESS PRESSED METAL CORPORATION, Plaintiff, Appellant, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al., Defendants, Appellees.

No. 71-1198.

United States Court of Appeals, First Circuit.

November 8, 1971.

Julius Kirle, Boston, Mass., for appellant.

Michael A. Feinberg, Boston, Mass., for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

PER CURIAM.

This is an action for a declaratory judgment seeking to enjoin arbitration of a labor grievance. The district court denied relief, but by agreement of the parties arbitration was postponed until the actions should be disposed of. Appellant employer and appellee union¹ for many years have had a collective bargaining agreement calling for arbitration of "any controversy between the parties or between the Company and employees covered by this Agreement as to any matter involving the interpretation or application of any of the provisions of this Agreement" which has not been resolved through the grievance machinery. In 1965 one Burke, an employee of thirteen years seniority, was promoted to supervisor. Five years later he was laid off, and sought reinstatement into the bargaining unit as a rank and file employee. The employer refused and the union, after unsuccessfully invoking the grievance procedure, sought arbitration. The company brought this action to enjoin arbitration, claiming that the dispute is not arbitrable because Burke, as a laid-off supervisor, is not a person for whom the union is entitled to grieve.

It is common ground that although a collective bargaining agreement is a contract, it is to be more liberally construed than an agreement between private individuals. A court should not refuse to order arbitration "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrier & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). This does not grant to the courts a license to inquire into the merits on the theory that they are enforcing a clause limiting arbitration to disputes requiring an interpretation of the agreement. A dispute may not be kept from the arbitrator on this ground so long as it is "possible", even if as a court we might not think it "reasonable", for an arbitrator to decide in favor of the party demanding arbitration without thereby, in effect, amending the plain language of the agreement. See John Wiley & Sons v. Livingston, 376 U.S. 543, 555, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Camden Industries Co. v. Carpenters Local Union No. 1688, 353 F.2d 178, 180 (1st Cir. 1965).

The company relies on Article II —Coverage, which provides that "This Agreement applies only to all * * * employees * * * but excluding * * * supervisors as defined in the Act." If Article II were susceptible only of a very precise and narrow definition of "employee", the mere fact that other clauses could be read consistently with a broader definition would not suffice for arbitrability. We read certain clauses of the agreement, however, as arguably pointing positively to a different and wider definition. Under these circumstances, we deem it proper for an arbitrator to resolve the dispute. In particular, the notion that seniority is inextricably intertwined with the right to reinstatement provides, in our view, a basis for an interpretation favorable to Burke of the word "employee" in the coverage clause. The argument would be that under the agreement supervisors retain seniority accrued before their promotions and that, therefore, they remain employees for the purpose of exercising seniority rights and their right of reinstatement, like that of other employees, is determined solely by their seniority. On this theory, arbitration of the grievance is not plainly barred by the Article II inclusion of "employees" and exclusion of "supervi...