UNITED STEELWORK., LOC. NO. 1617 v. General Fireproofing Co., 72-1139.

Decision Date12 July 1972
Docket NumberNo. 72-1139.,72-1139.
PartiesUNITED STEELWORKERS OF AMERICA, LOCAL NO. 1617, Plaintiff-Appellee, v. The GENERAL FIREPROOFING COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Eldon S. Wright, Youngstown, Ohio, Harrington, Huxley & Smith, Youngstown, Ohio, on brief, for defendant-appellant.

Eugene Green, Youngstown, Ohio, Anthony P. Sgambati, II, Green, Schiavoni, Murphy & Haines, Youngstown, Ohio, on brief, for plaintiff-appellee.

Before WEICK and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

Plaintiff labor union, United Steelworkers of America, Local No. 1617, the duly recognized bargaining agent for production and maintenance employees of defendant General Fireproofing Company, at its Youngstown, Ohio plant, brought this action in the District Court under § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, for breach of the provisions of a collective bargaining agreement in effect between the parties. The union sought an order requiring the company to arbitrate the discharge of one of its supervisors, Edward Kopstoffer, or, in the alternative, that the company be ordered to restore Kopstoffer to his employment with back pay. The District Court overruled the Company's motion for summary judgment, and summarily ordered that the dispute concerning Kopstoffer's rights to continued employment be submitted to binding arbitration, as provided in the collective bargaining agreement although the union had filed no motion for summary judgment. The Company appealed.

The relevant provisions of the collective bargaining agreement are as follows:

"ARTICLE I
"THE provisions of this Agreement constitute the sole procedure for the processing and settlement of any claim by an employee or the Union of a violation by the Company of this Agreement. As the representative of the employees, the Union may process grievances through the grievance procedure including arbitration in accordance with this Agreement or adjust or settle the same. . . ."
"ARTICLE II-DEFINITION
"AS used herein the term `employee\' includes all production and maintenance employees of the Company at its Youngstown, Ohio, plant and excludes supervisors, shipping department clerks, timekeepers, secretaries to the foremen and division superintendents, general office, general factory office and employment office employees, cafeteria workers, plant protection and laboratory employees."
"ARTICLE X-SENIORITY AND CONTINUOUS SERVICE
"NO employee shall lose his seniority by being or having been promoted to the supervisory force and if, after such promotion, he is returned to regular production or maintenance work, he shall have the same seniority status as if he had continued his employment in the department. In such case, he shall return to the occupation which he held immediately prior to his promotion to supervision. . . ."
"ARTICLE XII—GRIEVANCE PROCEDURE
"SHOULD any dispute or disagreement arise between an employee and the Company as to the meaning and application of the provisions of this Agreement, as to an alleged violation of the same, or over the suspension of an employee, such dispute or disagreement, unless otherwise provided herein, shall be handled in the following manner:

ARTICLE XII continues and describes various steps in the grievance procedure. One portion of that procedure is:

"IT is further understood that no arbitrator shall have the power to add to, subtract from, or modify the terms of this Agreement or any system or program to which reference is herein made.
. . . ."

Kopstoffer was first employed by the company in January of 1941, and in the fall of 1963 was offered a promotion to a supervisory position. Before he would accept the position, however, Kopstoffer wanted assurances that:

(1) He would nevertheless be assured of receiving his "buy-out." (A company purchase of an hourly rate guarantee, which was imminent for bargaining unit employees.)
(2) His name would be kept on the department seniority list.
(3) He would have steady "day-light" working hours.
(4) If either he or the company became unsatisfied with his work as supervisor, he would be entitled to return to his previous work in the bargaining unit.

The union contends that various company management officials agreed to these demands.

Kopstoffer began working as a supervisor in October, 1963, and continued to do so until January 12, 1971, when he was discharged from further employment with the company. This discharge date left Kopstoffer one day short of 30 years of service, which would have qualified him for the pension for employees with 30 or more years of service. The company alleges that Kopstoffer was discharged because of disloyalty to the company, whereas the appellee union contends that the discharge was due to his activity as President of the company's Foremen's Club. The alleged disloyalty occurred at the time when Kopstoffer was a supervisor.

After the discharge, the union filed a grievance under the collective bargaining agreement, but the company refused arbitration contending that Kopstoffer was not an "employee" as defined in Article II of the collective bargaining agreement, and that therefore the company had never agreed to arbitration in this kind of a dispute. It maintained that any rights that Kopstoffer might have arise under the alleged private agreement, and not through the terms of the collective bargaining agreement. After the company refused arbitration, the union filed the present suit.

A federal court, when considering the applicability of arbitration in a labor management dispute, faces a strong policy favoring arbitration. Thus, the court must 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. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Indeed, a main thrust of the decisions by the Supreme Court in the steelworker's trilogy was that any possible doubts as to arbitrability are to be resolved in favor of arbitration. See United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior and Gulf, supra; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424 (1960).

"This Court has in the past recognized the central role of arbitration in effectuating national labor policy. Thus, in Warrior & Gulf Navigation Co., supra, 363 U.S. at 578, 80 S.Ct. 1347 at 1351, arbitration was described as `the substitute for industrial strife,\' and as `part and parcel of the collective bargaining process itself.\'" John Wiley & Sons v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964).

Nevertheless, arbitration is a matter of contract between the parties, and one cannot be required to submit to arbitration a dispute which it has not agreed to submit to arbitration. Under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, federal courts have the duty to determine if a party to a labor contract has breached its promise to arbitrate, although such a judicial inquiry is strictly confined to the question of whether or not the parties have agreed to arbitration. Warrior & Gulf, supra at 582, 80 S.Ct. 1347. It is not for the arbitrator to decide whether the dispute is arbitrable.

In John Wiley & Sons, supra, 376 U.S. at 547, 84 S.Ct. at 913, the Supreme Court made the judicial obligation quite clear when it stated:

"The duty to arbitrate being of contractual origin, a compulsory
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