Butchers, Food Handlers and Allied Workers Union of Greater New York and New Jersey, Local 174, United Food and Commercial Workers Union v. Hebrew Nat. Kosher Foods, Inc.

• Decision Date: 11 May 1987
• Docket Number: No. 584,D,584
• Citation: 818 F.2d 283
• Parties: 125 L.R.R.M. (BNA) 2486, 55 USLW 2679, 106 Lab.Cas. P 12,358 BUTCHERS, FOOD HANDLERS AND ALLIED WORKERS UNION OF GREATER NEW YORK AND NEW JERSEY, LOCAL 174, UNITED FOOD AND COMMERCIAL WORKERS UNION, Plaintiff- Appellee, v. HEBREW NATIONAL KOSHER FOODS, INC., Defendant-Appellant. ocket 86-7840.
• Court: U.S. Court of Appeals — Second Circuit

Page 283

818 F.2d 283

125 L.R.R.M. (BNA) 2486, 55 USLW 2679,

106 Lab.Cas. P 12,358

BUTCHERS, FOOD HANDLERS AND ALLIED WORKERS UNION OF GREATER NEW YORK AND NEW JERSEY, LOCAL 174, UNITED FOOD AND COMMERCIAL WORKERS UNION, Plaintiff- Appellee, v. HEBREW NATIONAL KOSHER FOODS, INC., Defendant-Appellant.

No. 584, Docket 86-7840.

United States Court of Appeals Second Circuit.

Argued Dec. 16, 1986.

Decided May 11, 1987.

Harold Krieger, Jersey City, N.J. (Brian N. Flynn, Krieger, Ferrara, Flynn & Catalina, Jersey City, N.J., on the brief), for plaintiff-appellee.

Gregory I. Rasin, New York City (Mark L. Sussman, Felice B. Ebelman, Jackson, Lewis, Schnitzler & Krupman, New York City, on the brief), for defendant-appellant.

Before MESKILL, KEARSE and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Hebrew National Kosher Foods, Inc. ("Hebrew National"), appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, granting the motion of plaintiff Butchers, Food Handlers, and Allied Workers Union of Greater New York and New Jersey, Local 174, United Food and Commercial Workers Union ("Local 174") to compel arbitration under the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1982), and the Arbitration Act, 9 U.S.C. Sec. 4 (1982), of the alleged breach by Hebrew National of a collective bargaining agreement provision concerning decisions by Hebrew National to move its operation to a location outside of Local 174's jurisdiction. On appeal, Hebrew National argues that the threshold question of whether its decision to relocate was made during the term of the collective bargaining agreement goes to the arbitrability of the dispute and thus should have been decided by the district court rather than consigned to the arbitrator. We disagree and affirm the district court's order.

BACKGROUND

Much of the background of this litigation appears to be undisputed. Hebrew National and Local 174 have had a series of collective bargaining agreements, the most agrees that if it decides to move its operations to another location outside the jurisdiction of Local 174, it will give notice thereof at least six (6) months before the move, and the parties will then bargain over the effects of the move, but not over the decision to move.

                recent of which expired on June 13, 1986 ("1986 Agreement"), governing the terms and conditions of employment for employees at Hebrew National's plant in Maspeth, New York.  Article 24(d) of the 1986 Agreement provided that if the parties could not adjust a grievance within two days, they would arbitrate "[a]ll grievances not involving the discharge of an employee arising between the Union and the employer, or between the employer or [sic ] employees."    Article 18(b) of the 1986 Agreement provided that Hebrew National
                

That article also provided that if the parties could not agree on the effects of the move, Local 174 would be relieved of its no strike pledge unless Hebrew National brought the matter to arbitration.

In April 1986, Hebrew National and Local 174 began negotiations for a successor to the 1986 Agreement. In early April, Local 174 learned from another union that Hebrew National had recently opened a plant in Indianapolis, Indiana, and heard rumors that machinery had been moved there from the Maspeth plant. According to an affidavit of Robert Wilson, Local 174's president, Wilson promptly inquired of Martin Silver, Hebrew National's executive vice president and chief negotiator, and received assurances that no relocation of work from Maspeth to Indianapolis was contemplated.

The negotiations for a new collective bargaining agreement were unsuccessful. On June 13, 1986, the 1986 Agreement expired with no replacement; on June 15, Local 174 began a strike against Hebrew National. On June 18, Hebrew National advised Local 174 by letter that "[w]e are now constrained to seriously consider relocation." According to Wilson, Silver nonetheless advised him, apparently on the same day, that Hebrew National was not in fact contemplating any relocation of work.

According to the affidavit of Silver, Hebrew National decided on July 25, 1986, to relocate part of its Maspeth operations to Indianapolis and it communicated that decision to Local 174's negotiators on that date. According to Wilson, Silver assured him several days after July 25 that Hebrew National had no real intention of relocating any part of its Maspeth operations.

According to Silver, on August 7, 1986, Hebrew National informed Local 174 that it was considering relocating all of its Maspeth operations to Indianapolis; by letter dated August 8, 1986, Hebrew National notified Local 174 that it had decided to relocate all work from Maspeth to Indianapolis. According to Wilson, Hebrew National informed Local 174 of this decision on August 7. On that date Local 174 filed a grievance and demanded arbitration concerning Hebrew National's failure to give six months' advance notice of the relocation as required by Article 18(b) of the 1986 Agreement. Hebrew National refused to arbitrate, and Local 174 commenced the present action to compel arbitration, seeking an injunction against the planned relocation. Hebrew National cross-moved to stay arbitration.

After hearing oral argument, the court granted Local 174's motion to compel arbitration. Relying on Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), and Emery Air Freight Corp. v. Local Union 295, Int'l Brotherhood of Teamsters, 786 F.2d 93 (2d Cir.1986) ("Emery Air Freight "), the court stated from the bench that "no matter how 'frivolous' the union claims appear to be on the merits and so long as it is not so plainly unreasonable that it can be seen in advance that no award to the union could receive judicial sanction it must be referred to an arbitrator." (August 28, 1986 Transcript at 5.) In a subsequent written order, the court specified the questions to be answered by the arbitrator as follows:

1. Did the employer decide, before June 13, 1986, to move its operation to a location outside the jurisdiction of Local 174? If the answer to this issue is "NO", the inquiry ends.

2. If, however, the answer to the above question is "Yes" the arbitrator shall answer the following questions:

a. When was the first notice given of the decision to relocate?

b. What damages or remedy, if any, should there be for any failure to give timely notice under Article 18(b) of the collective bargaining agreement?

c. Has Hebrew National refused, after giving notice of relocation, to bargain over the effects of the relocation?

Order dated September 3, 1986. The court denied Local 174's motion for an injunction against the relocation and denied Hebrew National's motion to stay arbitration.

Hebrew National has appealed from so much of the order as compelled, and refused to stay, arbitration. Local 174 has not cross-appealed from the denial to it of other requested relief.

DISCUSSION

General principles governing the arbitrability of labor disputes are well established. There is no obligation to submit a dispute to arbitration unless the parties have contracted to do so. E.g., AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) ("AT & T Technologies "); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960) ("Warrior & Gulf ") ("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"). The question of whether the collective bargaining agreement creates a duty to arbitrate the particular dispute is to be resolved by the court, not the arbitrator. If the contract contains a clause requiring the parties to submit disputes to arbitration, the court should resolve any doubt as to whether a particular dispute falls under that clause in favor of ordering arbitration. As the Supreme Court has recently reaffirmed,

where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n 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 of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."

AT & T Technologies, 106 S.Ct. at 1419 (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1352-53).

On this appeal, Hebrew National relies only on the most general of these principles in contending that it should not be compelled to arbitrate the question of whether its relocation decision was made during the term of the 1986 Agreement. As the argument goes, the existence of the duty to arbitrate is a question for the court; if the decision to relocate was made after the 1986 Agreement...