Laundry, Dry Clean. & DH Wkrs. Int. U., Loc. 93 v. Mahoney

• Decision Date: 22 January 1974
• Docket Number: No. 72-1731.,72-1731.
• Citation: 491 F.2d 1029
• Parties: LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL 93, OF SPRINGFIELD, MISSOURI, Appellee, v. Robert M. MAHONEY et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.2d 1029 (1974)

LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL 93, OF SPRINGFIELD, MISSOURI, Appellee, v. Robert M. MAHONEY et al., Appellants.

No. 72-1731.

United States Court of Appeals, Eighth Circuit.

Submitted November 12, 1973.

Decided January 22, 1974.

Rehearing and Rehearing Denied February 13, 1974.

Donald W. Jones, Springfield, Mo., for appellants.

Benjamin J. Francka, Springfield, Mo., for appellee.

Before MEHAFFY, Chief Judge, and GIBSON, LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges, en banc.

Rehearing and Rehearing En Banc Denied February 13, 1974.

HEANEY, Circuit Judge, with whom LAY, BRIGHT and WEBSTER, Circuit Judges, join.

This matter comes before the Court en banc on a petition for rehearing. The sole issue is whether the trial court erred in requiring the parties to a collective bargaining agreement to submit a mid-contract wage dispute to binding arbitration.¹

On August 8, 1968, the Union entered into a collective bargaining agreement with the then owner of the business. Article XX of the agreement provides:

Section 1. This agreement shall remain in full force and effect until August 8, 1973, and from year to year thereafter, unless sixty (60) days prior to August 8, 1973, or any year thereafter, the Union notifies the Employer or the Employer notifies the Union of its desire to terminate or modify this Agreement. This notice must be written.

Section 2. Either the Employer or the Union shall have the right as of August 8, 1971, to reopen for negotiation on the subject of wages and seniority only, upon either party giving written notice to the other at least sixty (60) days prior to such reopening date. In the absence of such notice, the existing conditions shall continue to remain in effect until the expiration date of the Agreement.

Thereafter, most of the assets of the business were sold to the Bormon Investment Company, and that firm became obligated to abide by the terms of the agreement as a successor employer.

The Union and the Employer exercised their option to reopen the contract on wages and seniority by giving a timely notice. The parties were unable to reach an agreement on either issue. The Union demanded that the unresolved issues be submitted to arbitration. The Employer refused on the grounds that it was not obligated to arbitrate these issues. The Union then brought an action seeking to require the Employer to submit the dispute to arbitration.

The agreement generally establishes wage rates and working conditions. It specifically provides:

ARTICLE I.

Purpose

Section 1. It is the intent and purpose of the parties hereto, to set forth herein their basic agreement covering wages, hours of work, and conditions of employment to be observed between the parties hereto, and to provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.

* * * * * *

ARTICLE XIII.

No Strike or Lockout

Section 1. There shall be no strikes, stoppages, slowdowns, or concerted activity interrupting or interfering with production, or lockouts, for any reason whatsoever during the life of this Agreement.

It also contains a grievance and arbitration clause which reads as follows:

ARTICLE XIV.

Grievance and Arbitration

Section 1. It is hereby agreed that the Union may have one (1) duly accredited representative to be known as the "Steward" in each plant to be selected by the Union. It shall be his or her duty to receive complaints and to present them to the management. * * *

Section 2. In order to determine the existence and/or validity of a grievance, the Steward shall notify the Plant Manager or his designated representative of the charge by an employee, and as soon as practicable, the Steward and the Employer representative shall discuss the matter with the view of resolving the issue if possible. * * *

Section 3. If the grievance is not settled in the manner set forth in Section 2 within two (2) working days after the Steward has first discussed it with the Plant Manager, it shall be reduced to writing and considered between the Business Agent and Company representatives.

Section 4. If not settled within five (5) working days as set forth in Section 3, the matter shall be referred to arbitration.

Section 5. Each party shall select an arbitrator . * * * Should there be no agreement between the two arbitrators as to the third arbitrator, application shall be made to the Federal Mediation and Conciliation Service in Washington, D. C., for a panel of five (5) nominees. The parties shall alternate in striking two names each and the remaining shall be the impartial arbitrator. The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *

* * * * * *

ARTICLE XVIII.

Savings Clause

Section 1. If any law now existing or hereinafter enacted, or any proclamation, regulation, or edict of any state or national agency shall invalidate any portion of this Agreement, the entire Agreement shall not be invalidated, and either party hereto, upon notice to the other, may reopen for negotiation the invalidated portion, and if agreement thereon cannot be reached, within thirty (30) days, either party may submit the matter to arbitration as herein provided.

The matter was submitted to the trial court on cross-motions for summary judgment. The court initially determined that the question of arbitrability was for it to decide. It then held, on the authority of the United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), that the dispute was arbitrable because no forceful evidence of an intent or purpose to exclude the dispute from arbitration was evidenced.

The Employer argues on appeal: (1) that they are under no obligation to arbitrate any wage and seniority issues; (2) that their only obligation under the agreement is to negotiate on the two issues, and they have fulfilled that obligation; (3) that arbitration is only available to resolve employee grievances, and then only after such grievances have been processed in accordance with Sections 1, 2, 3 and 4 of Article XIV of the agreement; and (4) that, here, no grievance exists, and that the dispute between the Employer and the Union was not processed in accordance with the above sections.

The trial court correctly held that the issue of arbitrability was one for it to decide. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Drake Bakeries v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).

The trial court also properly decided that the midterm contract dispute between the Employer and the Union over wages and seniority is an arbitrable one.

Warrior teaches:

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or agreed to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

* * * * * *

* * * In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.

United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. supra at 582, 584-585, 80 S.Ct. 1347, 1353, 1355. Accord, Local Union No. 4, IBEW, AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th Cir. 1972); Builders Ass'n of Kansas City v. Greater Kansas City Lab. D. C., 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964).²

We are convinced, as was the trial court, that it cannot be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute.³ Although the "Grievance and Arbitration" clause speaks of employee grievances, the "purpose" clause of the agreement asserts that the agreement is intended to provide "procedures for the * * * equitable adjustment of all grievances and disputes arising between the Employer and the Union * * *". If the contract is to be read as a whole, as it must, Montana-Dakota Utilities Co. v. N. L. R. B., 455 F.2d 1088 (8th Cir. 1972), effect should be given to this language. The savings clause speaks of submitting matters other than grievances to "arbitration as herein provided," thus negating an intent to limit the arbitration clause in the manner suggested by the appellant. Moreover, the collective bargaining agreement includes an absolute "no strike, no lockout" clause. This inclusion lends support to the view that the collective bargaining agreement was intended to...