Oil, Chemical and Atomic Workers Intern. Union, Local 2-124 v. American Oil Co.
| Decision Date | 15 January 1976 |
| Docket Number | No. 75--1232,75--1232 |
| Parties | 91 L.R.R.M. (BNA) 2202, 78 Lab.Cas. P 11,208 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 2--124, Appellant, v. AMERICAN OIL COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Harry E. Leimback, Casper, Wyo., for appellant.
Herbert C. Snyder, Jr., Indianapolis, Ind. (George M. Porter, Casper, Wyo., Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., Wehrli & Williams, Casper, Wyo., and James A. Sullivan, III, Chicago, Ill., with him on the brief), for appellee.
Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.
Plaintiff-appellant, Oil, Chemical and Atomic Workers International Union, Local 2--124, sued on behalf of one of its members under § 301 of the National Labor Relations Act, 29 U.S.C. § 185, to compel arbitration or, alternatively, to compel reinstatement and recover back wages. The district court dismissed the complaint. Oil, Chemical and Atomic Workers International Union, Local 2--124 v. American Oil Company, D.Wyo., 387 F.Supp. 796.
Street, a member of the Union, began working for the defendant-appellee American, Oil Company in 1949. In 1966 while employed as a truck driver he received a job-related injury. Thereafter, he was repeatedly absent from work because of physical disabilities apparently related to the injury. In January, 1970, at the Company's request he was examined by an orthopedist who found that he should not drive a truck and recommended partial disability retirement. The Company placed him on disability retirement. His several requests for return to work were denied.
Pursuant to the bargaining agreement grievance procedure Union presented a grievance which was denied at the first two steps. The third step was arbitration. Company refused to arbitrate on the ground that the issue was not arbitrable under its contract with Union. The instant suit was then brought.
The question is whether the grievance was arbitrable. Union relies on the contract provisions that 'an employee may be discharged only for cause', § 10.2 n., and that 'disputes concerning disciplinary action resulting in loss of pay shall be eligible for referral to arbitration', § 3.2.
Company relies on Art. XI which provides that the contract shall not affect 'the status of employees under employee benefit plans, such as retirement plan, * * $, and that 'neither party shall have the right to have any such issue arbitrated.'
Section VI. C. of Company's retirement plan provides:
'The Company shall have the right, but not the obligation, and with or without application of the participant, to retire any participant who is, on the basis of medical evidence satisfactory to the Company, physically or mentally disabled for work with the Company.'
The issue of arbitrability is for judicial determination because no party has to arbitrate a dispute unless it has consented thereto. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462. See also United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409, and Johnson Builders, Inc. v. United Brotherhood of Carpenters and Joiners, 10th Cir., 422 F.2d 137, 139.
With reliance on John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898, the Union argues that an employer may be required to arbitrate a question even though he has not agreed to that arbitration. That case was concerned with the obligation of a successor employer to arbitrate under a union contract made by its predecessor. The effect of Wiley & Sons has been weakened and limited by National Labor Relations Board v. Burns International Security Services, Inc., 406 U.S. 272, 285--286, 92 S.Ct. 1571, 32 L.Ed.2d 61, and by Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417 U.S. 249, 253--255, 262, 94 S.Ct. 2236, 41 L.Ed.2d 46. In the instant case the Company made the contract with the Union and the issue is whether it agreed to...
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