Belk v. Allied Aviation Service Co. of New Jersey, Inc.

• Decision Date: 25 March 1963
• Docket Number: Docket 27673.,No. 144,144
• Citation: 315 F.2d 513
• Parties: James BELK, Plaintiff-Appellant, v. ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

315 F.2d 513 (1963)

James BELK, Plaintiff-Appellant, v. ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC., Defendant-Appellee.

No. 144, Docket 27673.

United States Court of Appeals Second Circuit.

Argued November 29, 1962.

Decided March 25, 1963.

William McKelvey, New York City, for plaintiff-appellant.

Emanuel Dannett, of McGoldrick, Dannett, Horowitz & Golub, New York City (Herbert D. Schwartzman, of McGoldrick, Dannett, Horowitz & Golub, New York City, on the brief), for defendant-appellee.

Before CLARK, MOORE, and KAUFMAN, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

Plaintiff James Belk, a resident of New York, was employed by Allied Aviation Service Company of New Jersey, Inc. (Allied) as a Sky Cap Porter at the Municipal Airport, Newark, New Jersey. He is a member of Local 297 of the United Transport Service Employees (the Union), the recognized bargaining agent for plaintiff, and is subject to a collective bargaining contract between Allied and the Union. While working on September 29, 1961, Belk received a letter terminating his services without giving him notice of a hearing as required in such cases under the terms of the contract.

Without any effort to obtain redress for his discharge through his Union, Belk brought suit directly against Allied in the Southern District of New York for damages as a result of the alleged breach. Jurisdiction was founded on diversity of citizenship. The Court below granted defendant's motion to dismiss and Belk appeals.

The contractual provisions for the settlement of disputes are contained in Article 20 of the collective agreement.¹ In summary that article provides that no employee who has been in service for ninety days will be dismissed without a fair and impartial hearing before the employer. The initial stages of this grievance procedure are prosecuted by the employee himself, although he is entitled to the presence of his Union representative if he so desires. The contract further states that if the Union feels that the Company's ultimate determination is unfair, the Company and Union shall endeavor to settle the issue, and failing this either may demand arbitration.

Appellant argues that the failure of the Company to offer him a hearing was a breach of the agreement entitling him to damages in a suit on the contract. He further contends that since the Union does not enter the procedure until the Company has made a determination of his status after a hearing and, since the Union can request arbitration only if it feels that the decision is unfair, recourse to arbitration through the Union before suit is not only unnecessary but is foreclosed under the contract since no such determination after a hearing has been made.

The broad coverage and intent of the contract to seek "amicable adjustment" instead of court litigation is apparent from the opening clause of the Article 21: "No Strike — No Lockout", reading, "As this agreement provides for the amicable adjustment of any and all disputes and grievances, * * *." Assuming that failure to give notice made the specific provisions of Article 20(d) unavailable, Article 20(e) provides that:

"When a dispute or claim involving the application, construction, interpretation or performance of the rules of this agreement occurs, the parties agree that they shall endeavor in good faith, first to adjust and settle such disputes between themselves after a fair hearing. Failing such adjustment or settlement between themselves, either party may demand arbitration by an arbitrator designated by the Federal Mediation and Conciliation Service; the other party must agree thereto, and the decision and award of said arbitrator shall be final and binding upon the parties. The cost of any arbitration, if any, shall be borne equally by the parties hereto."

Although the preliminary procedures prescribed in this contract for the prosecution of cases of wrongful discharge may be somewhat unusual, a dispute over the Company's breach of the notice and hearing provisions constitutes a dispute involving "performance of the rules of this agreement." Any collective agreement is intended to secure rights for individual employees; notice and a hearing after discharge are merely examples of such rights. They are no different from provisions with respect to seniority, vacations or overtime pay. Under the broad arbitration clause set out above, controversies concerning these matters were clearly intended to be submitted to arbitration as agreed upon in the contract. So too the breach of contract alleged in this case.

That a matter of procedure rather than one of substance is involved is of no significance. In fact, we recently held that the question of compliance with the procedural prerequisites to arbitration set forth in the collective agreement is to be decided by the arbitrator and not the court. Livingston v. John Wiley & Sons, Inc., 313 F.2d 52 (Jan. 11, 1963). What effect is to be given this breach by the employer, whether the arbitrator would require that the employer give Belk a hearing or whether he would find jurisdiction to deal with this discharge on the merits are all questions that the contract contemplates will be submitted to the arbitrator.

This being the case, the remaining question is the effect of the arbitration clause on the individual's right to sue for breach of contract. Since this is a diversity case, there is no question of this court's jurisdiction to entertain this action. Even were this not so, the Supreme Court in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), held that suits by individuals are cognizable in the federal courts under Section 301. In addition, that Court held that all such suits are to be governed by federal law. However, the opinion in that case indicates in no uncertain terms that the Court was not striking down arbitration in favor of suits by individual employees in the courts because the Court specifically said, "There was no grievance arbitration procedure in this contract which had to be exhausted before recourse could be had to the courts." 371 U.S. 196, n. 1, 83 S.Ct. 271, and invited comparison with its recent decisions in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462, and Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed. 2d 474.² Conversely, if, as here, there is grievance arbitration procedure provided for, there should be recourse to it before the individual employee is permitted to bring a court action.

The Supreme Court by virtue of Evening News has now committed the federal courts to fashioning a body of law encompassing the rights of all parties concerned in the bargaining process. State courts, the lower federal courts at least in diversity cases, and numerous commentators have heretofore struggled to construct an adequate legal theory to deal with the relationship between employee, union, employer and the collective bargaining contract. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1 (1958). They have flirted with the theory of a third party beneficiary contract, with a finding of an agency relationship between union and employee, and with application of the principles of the law of trusts. See discussion of these theories in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 210 F.2d 623, 625-627 (3d Cir., 1954), aff'd 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955). Strict use of any one of these analogies leads to insurmountable difficulties, arising primarily from the fact that collective bargaining agreements are to a large degree sui generis. That is not to say that resort to established principles of law in these areas cannot at times be useful, but only that these agreements do not fit snugly into any one category. For example, a collective agreement is made for the benefit of the employees (at least in part), but a third party beneficiary is not bound by the contract under usual third party beneficiary rules. Certainly such a rule in the labor field might well lead to chaos and would be totally inconsistent with the purpose of such agreements.

We need not at this juncture try to resolve all these problems even assuming (which we do not) that such a herculean effort were possible because the case before us does not require it. We decide only that where the collective agreement provides for arbitration by the Union of the subject matter of the employee's suit, the employee must look to his union initially for the vindication of his rights.³ If every employee is to be free to institute suits directly against his employer for every incident which he claims to be a violation of some right under the collective bargaining agreement, little benefit is to be gained by any of the parties either from union representation or arbitration clauses. Where his remedy lies when his union refuses to prosecute his claim we leave to future cases as they arise.⁴

This result is in complete harmony with Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, supra. There the Company action for breach of a no-strike provision was dismissed, the Court holding that arbitration of this alleged breach was a prerequisite to suit. The Court rejected the argument that breach of a no-strike clause, often viewed as the quid pro quo for the arbitration provision (see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)), was a sufficient ground for avoiding the Company's duty to arbitrate. Atkinson v. Sinclair Refining Co., supra, does not apply here. The Supreme Court there merely held that since the arbitration clause in question only allowed the Union and not the employer to request arbitration, the Company had on duty to resort to arbitration before bringing suit for breach.

The entire import of the Supreme Court cases beginning with Lincoln Mills,...