International Ass'n of Machinists v. Howmet Corp.

• Citation: 466 F.2d 1249
• Decision Date: 11 September 1972
• Docket Number: No. 71-1132.,71-1132.
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS, etc., Petitioner-Appellee, v. HOWMET CORPORATION et al., Respondents, Menasco Manufacturing Company, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

466 F.2d 1249 (1972)

INTERNATIONAL ASSOCIATION OF MACHINISTS, etc., Petitioner-Appellee, v. HOWMET CORPORATION et al., Respondents, Menasco Manufacturing Company, Respondent-Appellant.

No. 71-1132.

United States Court of Appeals, Ninth Circuit.

September 11, 1972.

Jerome C. Byrne (argued), Williad Z. Carr, Jr., Kenneth E. Ristau, Jr., Kenneth W. Anderson, of Gibson, Dunn & Crutcher, Los Angeles, Cal., for respondent-appellant.

Herbert M. Ansell (argued), of Ansell & Ansell, Los Angeles, Cal., for petitioner-appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and ANDERSON,^* District Judge.

DUNIWAY, Circuit Judge:

The International Association of Machinists, District Lodge 94, and its affiliated Local Lodge 1571 (the Union) filed this action under 29 U.S.C. § 185 to compel arbitration of several grievances against Howmet Corporation and Menasco Manufacturing Co. Summary judgment was entered by the district court in favor of the Union against Menasco, but against the Union with respect to Howmet. Menasco appeals. We remand to the district court for modification of the order.

I. FACTS.

Until 1970, Menasco and Howmet both manufactured aircraft landing gear. In 1970 Menasco, a corporation with manufacturing plants in Burbank, California, and Fort Worth, Texas, purchased two California plants from Howmet, in Montebello and Pomona, and took over Howmet's contracts and manufacturing operations for the production of aircraft landing gear. The Union represented the production and maintenance employees at the Montebello plant and was party to a collective bargaining agreement (the Agreement) with Howmet covering those employees at the time of the Menasco takeover. In the purchase contract, Menasco succeeded to the Agreement with the Union as soon as it began operating the Montebello plant.

Because the Montebello plant was operating at a substantial loss, Menasco decided to close the plant, and it so informed the Union. Negotiations followed concerning the details of the closure operation and its effect on the employees. After five meetings over a period of four months failed to result in agreement on the issues of severance and vacation pay, job transfer and preferential hiring of the Montebello employees at other Menasco plants, and payments to the Union pension plan, the Union demanded arbitration under the terms of the Agreement. Menasco refused to arbitrate, and this action followed.

II. SCOPE OF COMPANY'S OBLIGATION TO ARBITRATE

The Supreme Court has established a strong presumption in favor of arbitration as the preferred method of settlement of industrial disputes. When the standard form of arbitration clause is used in a collective bargaining agreement, as it was here,¹ "an 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." United Steelworkers of America v. Warrior & Gulf Co., 1960, 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409. See also United Steelworkers of America v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403, and United Steelworkers of America v. Enterprise Wheel & Car Co., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (hereinafter referred to as the Steelworkers Trilogy).

Although arbitration is a matter of mutual agreement between the parties,² and they may choose to exclude certain areas of contention from the arbitration process, the standard set by the Court for finding a dispute nonarbitrable is a strict one: There must be either an "express provision excluding a particular grievance from arbitration" or "the most forceful evidence of a purpose to exclude the claim from arbitration." Id. at 585, 80 S.Ct. at 1354. Here, there is no such "express provision." Whether or not a particular dispute is prima facie covered by the agreement's arbitration procedure is a question for the court to decide, see John Wiley & Sons v. Livingstone, 1964, 376 U.S. 543, 546-547, 84 S.Ct. 909, 11 L.Ed.2d 898, and Local Freight Drivers Local 208 v. Braswell Motor Freight Lines, Inc., 9 Cir., 1970, 422 F.2d 109, 112. The issue is therefore a simple one: is there forceful evidence of a purpose to exclude these grievances from arbitration so that the heavy presumption in favor of arbitration is overcome? We hold that there is not.

The "evidence" urged by Menasco as indicating that the claims involved were not to be subject to arbitration procedure is threefold: (1) the absence of a clause or reference in the Agreement dealing specifically with those issues; (2) the Union's attempt to negotiate with Menasco concerning the issues connected with the plant closure; and (3) the assertion that the arbitration clause involved here is more restrictive than the standard one because it specifically provided that the arbitrator "shall not have the power to add to, subtract from, or change any of the terms of this Agreement."

However, explicit language in collective bargaining agreements covering each specific claim alleged to be arbitrable is not required. We have held that the complete silence of an agreement on the issues sought to be arbitrated is not sufficient evidence to meet the rigorous standard set by the Steelworkers Trilogy for a finding of nonarbitrability. Association of Industrial Scientists v. Shell Development Co., 9 Cir., 1965, 348 F.2d 385, 387. See also Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., 2 Cir., 1962, 298 F.2d 644, 645. Like the Supreme Court in John Wiley & Sons v. Livingstone, supra, we are faced here with a situation created by an action (a merger in Wiley, a plant closure here) which was not, in all probability, expressly contemplated by the Union and Howmet when the Agreement was entered into. "Fairly taken, however, the Union's demands collectively raise the question which underlies the whole litigation: What is the effect of the merger plant closure on the rights of the covered employees?" 376 U.S. at 554, 84 S.Ct. at 917. That question can be best answered by reference to and interpretation of the terms of the Agreement itself, a function of the arbitrator.

The second piece of "evidence" is likewise insufficient. It is true that the Union did not demand arbitration immediately upon learning of Menasco's refusal to accede to its claims, but evidenced a willingness to negotiate and compromise. Such behavior does not conclusively demonstrate that the claims were not covered by the Agreement. As we said in the Shell Development case, supra, ". . . to rule a controversy nonarbitrable on scant evidence falling short of a clear demonstration of that fact would set at naught the . . . important policy enunciated in the Steelworkers trilogy to arbitrate all disputes not clearly outside the arbitration clause." 348 F.2d at 389. Likewise, Menasco's third argument is without merit. We agree with the Fourth Circuit that a clause limiting the power of the arbitrator to add to, subtract from, or alter the provisions of the agreement does not affect the jurisdiction of the arbitrator, but merely limits his power to fashion an award. Tobacco Workers International Union, Local 317 v. Lorillard Corp., 4 Cir., 1971, 448 F.2d 949, 955.

We have rejected employers' contentions of nonarbitrability in situations where the evidence of a purpose to exclude the claims from the arbitration procedure was more forceful and substantial than that present in this case.³ See, e. g., Desert Coca Cola Bottling Co. v. General Sales Drivers, etc., 9 Cir., 1964, 335 F.2d 198. In such cases, as in this one, the public policy favoring the resolution of industrial disputes in a nonjudicial forum, with its attendant advantages of economy, efficiency and expertise, requires that we broadly construe arbitration clauses and uphold the arbitrability of issues which are even arguably covered by the collective bargaining agreement. From that perspective, we must affirm the district court's finding that the issues in question are arbitrable.

III. OTHER POINTS RAISED BY MENASCO

A. Inequity of compelling arbitration.

Menasco argues that arbitration should not be compelled because any award made by the arbitrator concerning some of the alleged grievances—job transfer and preferential hiring at other Menasco plants, as well as application of the Howmet Agreement to those Montebello employees who may be hired by Menasco at its other plants—would require conduct by Menasco which would be illegal as an unfair labor practice or would contravene Menasco's collective bargaining agreements with other unions at its other plants. The employees at Menasco's Burbank and Pomona plants are represented by other unions, and the Company argues that arbitration of the questions of job transfers and preferential hiring of Montebello employees and application of the Howmet Agreement to those hired at the plants involve matters which are within the exclusive purview of the unions representing Menasco employees at the other plants. Any effort on Menasco's part to comply with an arbitration award covering those matters would result in violation of its collective bargaining agreements with those other unions and the commission of unfair labor practices; and even the mere fact of arbitrating with one union issues which are committed to the exclusive bargaining purview of another union would create the very kind of industrial strife and unrest which it is the objective of national labor policy to avoid.

We think that Menasco's position has merit. The Supreme Court held in the Steelworkers Trilogy that the underlying objective of the policy favoring the resolution of disputes by arbitration is that of avoiding industrial strife and promoting industrial harmony through a fair, fast, and flexible system utilizing neutral but knowledgeable "peace-makers."...