OIL, CHEMICAL & ATOMIC WKRS. INT. U. v. Southern Union Gas Co.

• Decision Date: 07 August 1967
• Docket Number: No. 23942.,23942.
• Citation: 379 F.2d 774
• Parties: OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, Appellant, v. SOUTHERN UNION GAS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 774 (1967)

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, Appellant, v. SOUTHERN UNION GAS COMPANY, Appellee.

No. 23942.

United States Court of Appeals Fifth Circuit.

June 27, 1967.

Rehearing Denied August 7, 1967.

Carl A. Parker, Port Arthur, Tex., for appellant.

Robert Q. Keith, Beaumont, Tex., George E. Seay, A. S. Grenier, Claude D. Bell, Jr., Dallas, Tex., Keith, Mehaffy & Weber, Beaumont, Tex., Malone, Seay & Gwinn, Dallas, Tex., of counsel, for appellee.

Before BELL, GODBOLD, and DYER, Circuit Judges.

Rehearing En Banc Denied August 7, 1967.

GRIFFIN B. BELL, Circuit Judge.

The Union brought suit in the District Court in an effort to compel the Gas Company to arbitrate a grievance under the provisions of a collective bargaining agreement. Jurisdiction was founded on § 301(a) of the Labor Management Relations Act, 29 U.S.C.A. § 185(a). The District Court denied arbitration on the ground that the matter involved was wholly outside the bargaining agreement. This denial presents the issue on appeal. Being of the view that the court erred, we reverse.

The dispute centers around a company job formerly held by Simon Broussard. He was a member of the bargaining unit represented by the Union. The job required that he walk along pipeline rights of way and search for gas leaks using principally his sense of smell in the process. Upon detecting a leak, he would call in a repair crew. Broussard retired in March, 1962. No notices were posted for bids on his job nor was any attempt made to fill his job with an employee covered by the agreement.

About April of 1964 it was brought to the company's attention that Martin Hlavinka, a foreman or supervisor not in the bargaining unit, was checking for gas leaks by walking the line. Hlavinka, however, used a mechanical device known as a "Gastron Leak Detector" instead of his sense of smell to find leaks.

In May of 1964 a grievance was filed with the company by two employees who were union stewards. They alleged that Hlavinka was conducting these activities in violation of the collective bargaining agreement in that the job was allocated to the employees in the bargaining unit. The pertinent sections of that agreement are as follows:

(1) Article XXVI, § 1 defines a grievance:

"A grievance as used in this Contract, means any dispute about the proper application or meaning of this Contract. * * *"

(2) Article V, § 2:

"The Company and the Union agree that interchange of work by employees covered and employees not covered by this Contract shall be allowed only when necessary to properly take care of the Company\'s responsibilities to the public in cases of emergency.

"Supervisors shall act in a supervisory capacity only, and they shall not perform work of the same nature as is performed by employees covered by this Contract, except when necessary in cases of emergency. They shall not displace any employee covered by this Contract. * * *"

The position of the employees filing the grievance was that Art. V, § 2 of the agreement, supra, was violated by assigning Broussard's former job to foreman Hlavinka. The agreement provided that all grievances were to be handled by arbitration and the necessary steps were set out therein. Art. XXVI, § 1. The company appointed an arbitrator to process the grievance but then refused to go forward on the ground that it had not violated the agreement. The suit followed.

The position of the company here, and presumably in the District Court, is that since the foreman was searching for leaks through the use of a machine or mechanical device rather than his sense of smell, the acts done by him were outside the contract and there was no contractual obligation on the company to arbitrate. In an effort to sustain this position, the company first notes the recognition clause of the contract which expressly excludes supervisors from its terms. Art. II, § 1. Secondly, the company urges that Art. V, § 2, supra, recognizes that some work was that of employees not covered by the agreement. Lastly, it is said that Art. VII, § 86 (5) reserved the right to the company to contract out certain work and that the union and the company understood that this right included allowing supervisors to use mechanical devices to detect leaks. The company's further position is that cathodic protection had been introduced into the company's gas system, thereby eliminating considerable leakage and the necessity for Broussard's job.

After considering the pleadings and answers to the requests for admissions and after hearing the testimony of witnesses for both parties, the District Court concluded that the dispute was outside the agreement and hence there was no contractual obligation on the part of the company to arbitrate. No findings of fact were entered.

The proper approach for the courts in an arbitration matter such as this was delineated by the Supreme Court in the celebrated Steelworkers trilogy, United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United...