United Brick & Clay Workers v. Gladding, McBean & Co.

• Decision Date: 08 March 1961
• Docket Number: No. 1320-60-Y.,1320-60-Y.
• Citation: 192 F. Supp. 64
• Court: U.S. District Court — Southern District of California
• Parties: UNITED BRICK AND CLAY WORKERS OF AMERICA, AF of L-CIO, DISTRICT COUNCIL NO. 11; and United Brick and Clay Workers of America, AF of L-CIO, Local 661, Plaintiffs, v. GLADDING, McBEAN & COMPANY, a corporation, Defendant.

192 F. Supp. 64

UNITED BRICK AND CLAY WORKERS OF AMERICA, AF of L-CIO, DISTRICT COUNCIL NO. 11; and United Brick and Clay Workers of America, AF of L-CIO, Local 661, Plaintiffs, v. GLADDING, McBEAN & COMPANY, a corporation, Defendant.

No. 1320-60-Y.

United States District Court S. D. California, Central Division.

March 8, 1961.

Charles H. Warren, Los Angeles, Cal., for plaintiffs.

Latham & Watkins, by R. W. Lund, J. S. Welch, and I. M. Price, II, Los Angeles, Cal., for defendant.

YANKWICH, District Judge.

An Agreement entered into on May 25, 1960, which by its terms was made effective as of May 2, 1960, and was to continue in full force and effect until April 15, 1963, between United Brick and Clay Workers of America, to be hereafter called the "Union", and Gladding, McBean & Company, a corporation, to be referred to as the "Company", contained an elaborate grievance procedure, Article XIII, which may be briefly summarized.

A grievance is defined as:

"any alleged violations of the terms of provisions of this Agreement by the Company."

Four steps are provided. Step One calls for an informal discussion by the employee and the shop steward of the grievance with the foreman, who must give his answer within two working days. If a satisfactory settlement has not been reached in Step One, the grievance must be reduced to writing and referred by the shop steward of the department to the shop committee of the plant. If the Union considers the grievance justified, the shop committee must file a written grievance with the superintendent and request a Second Step meeting.

A written answer to the grievance must be given within three working days. If the Union is not satisfied with the Company's disposition in the Second Step, it may appeal the grievance to the Third Step by written notice to the plant superintendent within five working days from the date of the Company's written answer to the Second Step. Failing to reach a satisfactory settlement under the Third Step, and if the issue involves the interpretation or application of the provisions of the Agreement,

"the Union may, within two (2) days following the first regular meeting of the Local thereafter, (but in no event later than thirty-one (31) days after receiving the Company's Step Three answer), failing settlement, serve upon the Company a written demand that said grievance be arbitrated."

The grievance clause contained also the following provision which is pertinent to the discussion to follow:

"(i) Failure of the Union to process a grievance within any of the time limits specified in Steps One (1), Two (2), Three (3), and Four (4), shall render the grievance void, unless an extension of time is agreed upon in writing between the parties." (Emphasis added.)

Elsewhere in the Contract, Article II (d), there is the following provision:

"(d) The waiver of any breach or condition of this Agreement by either party shall not constitute a precedent for any further waiver of such breach, or condition."

Alleging violation of this Agreement by the Company, the named Union and District Council No. 11 instituted this action for specific performance under Section 301 of the Labor Management Relations Act of 1947, as amended. 29 U.S.C.A. § 185. The complaint, as finally amended, alleged violation of the grievance provisions of the Agreement by refusing to process the grievance filed on September 7, 1960. The controversy turns around the following facts which appear from the record:

On June 30, 1960, two written seniority grievances were presented to James A. York, plant superintendent, in the Second Step of the grievance procedure. One, dated June 24, 1960, was the grievance of Elmer Babcock; the second, undated, was the grievance of Elmer Babcock, Ignacio Alvarez, Sr. and Frederick Lona. These grievances, after an agreed extension of time, were discussed between the Union shop committee and the Company's superintendent, James A. York, on July 19, 1960, at which time he orally denied both grievances. On the same date, or on July 20, 1960, York returned the two grievances to the Union shop committee, with his Step Two reply written thereon, dated July 19, 1960, denying the grievances.

By letter dated July 29, 1960, the plaintiffs requested a Step Three meeting with the defendant on both grievances. The defendant replied by letter of August 4, 1960, stating that it considered the grievances "void", because there was no written notice of appeal within five working days of the Step Two answer, as required by the Agreement.

On August 12, 1960, a meeting was held between defendant and plaintiffs to discuss the timeliness of the appeal of the grievances. At such meeting, and a later one on August 19, 1960, the subject matter of the grievances were discussed, but the defendant maintained its position that it considered the grievances void.

By letter to the plaintiffs dated August 22, 1960, the defendant reiterated its position that the grievances were void because they were not appealed within the Agreement-prescribed time. By letter of August 26, 1960, the plaintiffs demanded that the defendant arbitrate the grievances, and the defendant refused to do so in letter dated August 31, 1960.

Admittedly, the Company refused to go into the Third Step because no written notice, as required by the grievance clause, was given to them within the five day period. This position the Company maintained in the discussions had with the Union's representatives thereafter and in the written communications just referred to. This position it maintains to date. This fact makes it important to consider whether the refusal to process is a matter which involves the "interpretation or application of the provisions of the Agreement" so as to call, ipso facto, for a determination by an arbitrator.

As already appears, the grievances which were the subject of the discussions related to claimed preference for employment and seniority rights of certain employees. As the conditions as to both stemmed from "seniority" as spelled out fully in the contract, Article VIII, any complaint by any employees that their rights, in this respect, were being disregarded would be a "grievance" which would require the interpretation or application of the contract in the light of the facts claimed to constitute the violation by the Company.

There is no disagreement between the parties as to this. The disagreement begins when we consider the claim of the Union that the failure to process the grievance, because of its untimeliness, is a "grievance", which, if not satisfactorily settled by further processing, would be the subject of determination by an arbitrator. We cannot agree. For courts have held that in actions of this character the question whether the matter is arbitrable, and there is the obligation to arbitrate, is one to be determined by the courts and not by the arbitrator. Local 205, United Electrical, Radio and Machine Workers of America (U E) v. General Electric Company, 1 Cir., 1956, 233 F.2d 85, 101; Davenport v. Proctor & Gamble Manufacturing Co., 2 Cir., 1957, 241 F.2d 511, 515-516, 63 A.L.R.2d 1350; International Union, etc. v. Benton Harbor Malleable Industries, 6 Cir., 1957, 242 F.2d 536, 539-540; Local 149 of American Federation of Technical Engineers v. General Electric Company, 1 Cir., 1957, 250 F.2d 922, 927, certiorari denied 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed. 2d 813; Boston Mutual Life Insurance Company v. Insurance Agents' International Union, 1 Cir., 1958, 258 F.2d 516, 521-522; Brass & Copper Workers Federal Labor Union No. 19322 AFL-CIO v. American Brass Company, 7 Cir., 1959, 272 F.2d 849, 853-854; Pittsburgh Railways Co. v. Amalgamated Association of Street, Electric Railway & Motor Coach Employes of America, D.C.W.D.Pa., 1959, 176 F.Supp. 16, 23.

The principle is briefly summed up by Chief Judge Magruder in Boston Mutual Life Insurance Company v. Insurance Agents International Union, supra:

"Under Art. XIX it is only a `grievance' which is subject to arbitration. The issue of arbitrability cannot be considered a `grievance', as is apparent from Art. XVIII, labeled `Grievances'. The `grievance' which the Union sought to have arbitrated in its counterclaim was the `Jacobson termination grievance'. Hence, whether the Employer had agreed to submit this matter to arbitration depends upon a determination by the court, as a preliminary matter, whether all the conditions precedent to arbitration have been fulfilled, including a determination whether the Union acted `within a reasonable time' in pressing for arbitration by the American Arbitration Association." 258 F.2d at page 522. (Emphasis added.)

And the Court of Appeals for the Seventh Circuit, in adopting and following this decision and its reasoning, states pithily, in Brass & Copper Workers Federal Labor Union No. 19322 AFL-CIO v. American Brass Company, supra:

"It is now well-settled that issues of substantive arbitrability are for the courts to determine." 272 F.2d at page 853.

The validity of these rulings has not been impaired by the later decisions of the Supreme Court in United Steelworkers of America v. American Manufacturing Co., 1960, 363 U.S. 564, 567-569, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed. 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed. 1424. In these decisions the high court held clearly that the question as to whether a particular matter is required to be arbitrated by the terms of the arbitration clause is for the court. This is stated explicitly in United Steelworkers of America v. Warrior & Gulf Navigation Co., supra:

"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

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