International Broth. of Elec. Workers, Local 2188 v. Western Elec. Co., Inc.

• Decision Date: 18 November 1981
• Docket Number: No. 80-3523,80-3523
• Parties: 108 L.R.R.M. (BNA) 3027, 92 Lab.Cas. P 13,147 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2188, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INCORPORATED, Defendant-Appellee. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 514

661 F.2d 514

108 L.R.R.M. (BNA) 3027, 92 Lab.Cas. P 13,147

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2188, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INCORPORATED, Defendant-Appellee.

No. 80-3523.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Nov. 18, 1981.

Barker, Boudreaux, Lamy, Gardner & Foley, Louis L. Robein, Jr., New Orleans, La., for plaintiff-appellant.

Tucker, Martin, Holder, Jeter & Jackson, Jeffrey Victory, Shreveport, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before SKELTON, ^** Senior Judge, and RUBIN and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

On September 28, 1977, the International Brotherhood of Electrical Workers, Local 2188 filed a grievance with the Western Electric Company. The union claimed that all of the "Group I Mechanics" in a certain department about forty employees should be reclassified as "Group II Machinists" because of the work the company had them performing. The company denied the grievance by letter of January 11, 1978, and the union made a timely demand for arbitration by letter of January 27, 1978.

In a letter dated March 21, 1979, the company took the position that the group claim was not arbitrable. ¹ The union brought this suit to compel arbitration. Both sides moved for summary judgment. The district court granted summary judgment to the company, relying entirely on the terms of two collective bargaining agreements between the union and the company.

The two agreements in question are the "General Agreement" between the union and the company, covering the terms and conditions of employment for all union members, and the "Journeyman Trades Plan Agreement" ("JTPA"), covering certain terms and conditions, including wages and job classifications, for certain skilled employees. Arbitrability of disputes over job classifications under the JTPA is governed by Article 5(2)(a) of that agreement, which provides in pertinent part:

A grievance involving ... the question whether an employee has been classified in the appropriate JOURNEYMAN TRADES OCCUPATION ... may be processed by the UNION in accordance with the provisions of ... ARTICLE 11, ARBITRATION of the GENERAL AGREEMENT, provided that the authority of the arbitrator, in any such case, shall be limited to a determination as to whether the COMPANY's judgment has been unreasonably exercised ....

Article 5(1) of the JTPA makes it clear that, "except as specifically provided ..., neither such grievance nor the provisions of this Agreement shall be subject to the provisions of ARTICLE 11, ARBITRATION of the GENERAL AGREEMENT."

The company argues, and the court below agreed, that the use of the term "an employee" in Article 5(2)(a) of the JTPA makes it clear that the question whether a group of employees has been properly classified is not arbitrable. ² We disagree.

In United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the Supreme Court established the rule for interpreting arbitration clauses in collective bargaining agreements:

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.

Id. at 582-83, 80 S.Ct. at 1353. ³ Thus, the question presented is whether we can say "with positive assurance" that a clause covering a dispute concerning "an employee" does not cover an identical dispute concerning "employees."

The company argues that it did not agree to submit to what it terms "group arbitration." It concedes that the dispute over each of the forty employees' classifications is arbitrable, yet contends that the use of the term "an employee" manifests an intent to submit only issues involving one employee at a time. It offers no extrinsic evidence, such as bargaining history, ⁴ to support this interpretation; and, of course, the union disputes that the words "an employee" were used with any such intent. If the company intended the words "an employee" to have such an effect, we think that it had to make its understanding much clearer than this.

If we were interpreting a statute giving a right of action to a "person," rather than a contractual clause granting a right of arbitration, we surely would not hold that the use of the word "person" excluded, as a substantive matter, the possibility that the action could be brought by several "persons." If we did, then no joint action or class action could be brought under such a statute, since our court-made rules of civil procedure do not and cannot amend the substantive rights granted by Congress. Yet, our statute books are teeming with provisions which grant a right of action to the singular "person," and which are often the basis of multi-plaintiff litigation. ⁵ The statutory analogy is a fitting one, for "(t)he collective bargaining agreement ... is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.... It calls into being a new common law the common law of a particular industry or of a particular plant." Warrior, 363 U.S. at 578-79, 80 S.Ct. at 1351.

The company argues that separate arbitrations are required because the forty employees "perform various and varying functions." This contention addresses the merits of the union's claim that all forty employees are misclassified; the merits are for the arbitrator, not the court, to decide. Warrior, 363 U.S. at 585, 80 S.Ct. at 1354. Similarly, any argument that the provisions of the two bargaining agreements impose a procedural requirement that each employee's classification be considered separately is for the arbitrator. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58, 84 S.Ct. 909, 918-19, 11 L.Ed.2d 898 (1964); Tobacco Workers International Union v. Lorillard Corp., 448 F.2d 949, 954 (4th Cir. 1971); Avon Products, Inc. v. International Union, UAW, 386 F.2d 651, 658-59 (8th Cir. 1967). We of course express no opinion on these questions; we hold only that the substance of the union's claim is arbitrable under the terms of the JTPA and the General Agreement.

Since the company offered nothing more than the terms of these two agreements in cross-moving for summary judgment, the district court should have rendered summary judgment for the union. On remand, therefore, the district court shall enter an order compelling the company to arbitrate the union's grievance.

REVERSED and REMANDED with instructions.

SKELTON, Senior Judge, dissenting.

I respectfully dissent. The Supreme Court has held in various cases that an employer cannot be compelled to arbitrate an issue that he has not agreed to arbitrate. See United Steelworkers v. Warrior & G. Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409, 1417 (1960) where the court said:

For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.

In Wiley & Sons v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 912, 11 L.Ed.2d 898, 902-903 (1964), the Supreme Court held:

(A)n employer has no obligation to arbitrate issues which it has not agreed to arbitrate * * *.

We held in Piggly Wiggly v. Piggly Wiggly, Inc., 611 F.2d 580, 583 (5 Cir. 1980):

The arbitrator's authority is circumscribed by the arbitration agreement, and he can bind the parties only on issues that they have agreed to submit to him.

There is neither a sentence, paragraph nor provision in the agreements between the Union and the employer in this case wherein the employer agreed to arbitrate the classification of the 40 workers involved on a group basis. Neither is there such an agreement in the correspondence or oral conversations between the parties. Yet, despite the total lack of such an agreement, and in the face of the above decisions of the Supreme Court and of this court, the majority decision forces the Company to arbitrate an issue it never agreed to arbitrate. In my opinion, this is contrary to law and I cannot agree with it.

The facts in this case are substantially as follows:

International Brotherhood of Electrical Workers, Local 2188 (hereinafter Local 2188 or the Union) brought this suit seeking an order from the court compelling Western Electric Company, Inc. (hereinafter Western Electric or the Company) to proceed with Local 2188 to arbitration of a grievance arising under a collective bargaining agreement between Local 2188 and Western Electric known as a "General Agreement," as well as a supplementary bargaining agreement entitled "Journeymen Trades Plan Agreement." Pertinent provisions of these agreements will be quoted and discussed below.

On September 28, 1977, Local 2188 initiated a grievance on behalf of "all Group 1 Mechanics" involving about 40 mechanics at positions set forth and described in the Journeymen Trades Plan Agreement, contending that they should all be reclassified to the higher position of "Group 2 Machinists," a job position also set forth in the Journeymen Trades Plan Agreement. The Group 2 Machinists were workmen of higher skills and were paid more for their work than the Group 1 Mechanics.

The grievance was processed through all four levels of the grievance procedure as provided in Article 10 of the General Agreement culminating in the fourth level response of Western Electric, dated January 11, 1978, over the signature of H. W. Wilkening, Bargaining Agent for Western Electric, denying the grievance of Local 2188 on the grounds that the Group 1 Mechanics were not performing the functions or using the skills that place them at the Group 2 Machinists level. Local 2188, by letter dated January 27, 1978, demanded that Western Electric proceed with Local 2188 to binding arbitration of the Group 1 Mechanics'...