INTERNATIONAL U. OF ELEC., R. & M. WKRS. v. General Elec. Co.

• Citation: 332 F.2d 485
• Decision Date: 26 May 1964
• Docket Number: Docket 28364.,No. 253,253
• Parties: INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellee. v. GENERAL ELECTRIC COMPANY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

332 F.2d 485 (1964)

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellee. v. GENERAL ELECTRIC COMPANY, Appellant.

No. 253, Docket 28364.

United States Court of Appeals Second Circuit.

Argued January 27, 1964.

Decided May 26, 1964.

COPYRIGHT MATERIAL OMITTED

Nordlinger, Riegelman, Benetar & Charney, New York City (David L. Benetar, Thomas F. Hilbert, Jr., H. H. Nordlinger, Martin Zeiger, New York City, of counsel), for appellant.

Baker & Diamond, Stamford, Conn. (Bertram Diamond, Stamford, Conn., of counsel); Benjamin C. Sigal, Washington, D. C., for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

This is an appeal from a decision of the United States District Court for the District of Connecticut, determining that a labor dispute is arbitrable. Plaintiff, International Union of Electrical, Radio, and Machine Workers, AFL-CIO, originally brought suit against defendant, General Electric Company, in the Superior Court for Fairfield County, Connecticut, in June of 1958, to compel the company to arbitrate a grievance which had arisen under its collective bargaining agreement with the union. The Connecticut Superior Court ruled in favor of the company and dismissed the union's complaint on the ground that the complaint failed to state a cause of action; but upon appeal the Supreme Court of Connecticut reversed and remanded, International Union of Electrical, Radio & Machine Workers, A. F.L.-C.I.O. v. General Electric Co., 148 Conn. 693, 174 A.2d 298 (1961). Thereupon the company removed the case to the U. S. District Court below, where suit could have originally been brought, Labor Management Relations Act, § 301 (a), 29 U.S.C.A. § 185(a), and there, after a denial of the union's motion to remand to the state court, the parties agreed that no appeal would be taken upon the ground of any alleged jurisdictional defect based upon the removal. After the relevant facts had been stipulated, the district court then granted the union's motion for summary judgment and ordered that the grievance be submitted to arbitration despite the following objections of the company: (1) that the grievance did not constitute an arbitrable dispute under the collective bargaining agreement; (2) that prior related action by the National Labor Relations Board had foreclosed submission of the dispute to an arbitrator; and (3) that, after the company's refusal to arbitrate, a strike which had been called by a plant local of the union, Local No. 203, precluded the union from thereafter seeking arbitration. We affirm the granting of the motion for summary judgment.

The grievance at issue arose when the company decided to make use of an independent construction firm in relocating, within its plant at Bridgeport, the manufacturing facilities of its Automatic Blanket and Fan Department. This project involved the purchase and installation of new equipment and machinery, the moving of machinery, and the remodeling of certain buildings. The union claims that this decision to subcontract by the company gave rise to an arbitrable question of whether in so doing the company violated the union recognition, job description, and seniority provisions of its 1955-1960 collective bargaining agreement with the union.¹ Article XV of that agreement, the basic arbitration provision, provides that "any grievance which remains unsettled after having been fully processed pursuant to the provisions of Article XIII describing the grievance procedure, and which involves either, (a) the interpretation or application of a provision of this Agreement, * * * shall be submitted to arbitration * * *." Another part of Article XV excludes from the province of an arbitrator certain types of questions not relevant here.

This grievance has been fully processed as per Article XIII of the bargaining agreement; and it is clear that Article XV, on its face, is sufficiently broad to require arbitration. Article XV, the standard type of arbitration clause used in most bargaining agreements providing for the arbitral process, states that "any" grievance which remains unsettled after preliminary processing shall be submitted to arbitration if it involves the "interpretation or application of a provision of this Agreement." By lodging this grievance against the company's subcontracting of this work — a type of grievance which, incidentally, we have had occasion to label a "garden variety" grievance, Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., 298 F.2d 644, 645 (2 Cir. 1962) — the union certainly called into question the proper interpretation to be accorded several provisions of this collective bargaining agreement. Indeed, in a previous case involving the same parties and this same contract, this court held arbitrable a grievance involving the quite similar question of the company's right to assign certain work to regular company employees outside the bargaining unit. Carey v. General Electric Co., 315 F.2d 499, 505 (2 Cir. 1963), cert. denied, 84 S.Ct. 1162 (1964).

It is the company's position, however, that even though the union's subcontracting grievance may be prima facie within the coverage of the arbitration clause, the parties nevertheless agreed in their bargaining contract to exclude subcontracting questions from submission to arbitration. Of course, one who undertakes to foreclose arbitration by employing this line of argument assumes a heavy burden, for, as the Supreme Court said in the now famous case of United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-585, 80 S.Ct. 1347, 1354, 4 L.Ed. 2d 1409 (1960), where parties to a collective bargaining agreement have provided for the arbitration of grievances, then "in the absence of any express provision excluding a particular grievance from arbitration * * * only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where * * * the exclusion clause is vague and the arbitration clause quite broad." This court has framed the rule in the following terms: "The nub of the matter is that under the broad and comprehensive standard labor arbitration clause every grievance is arbitrable, unless the provisions of the collective bargaining agreement concerning grievances and arbitration contain some clear and unambiguous clause of exclusion, or there is some other term of the agreement that indicates beyond peradventure of doubt that a grievance concerning a particular matter is not intended to be covered by the grievance and arbitration procedure set forth in the agreement." Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., supra, 298 F.2d at 645-646.

What is therefore remarkable about the company's position in the present case is that the company, far from pointing to an exclusionary clause which clearly and unambiguously removes certain grievances from the jurisdiction of the arbitrator, urges us to find the grievance at issue not arbitrable by utilizing a contractual provision which does not even purport to be an exclusionary clause in the light of bargaining history. The contractual provision relied upon is one found in the 1955-1960 "Settlement Agreement," of which the 1955-1960 "National Agreement," the basic collective bargaining agreement already alluded to, is a part. The provision is no more than the customary "wrap-up" clause which is inserted at the end of most bargaining agreements, and it provides, in relevant part, as follows:

"1. This Settlement Agreement shall remain in effect from August 15, 1955 to October 1, 1960.

"2. This Settlement Agreement, the 1955 Wage Agreement set forth in Part One hereof, the 1955 Pension and Insurance Agreement to be executed by the parties as provided in Part Two hereof, and the 1955 GE-IUE (CIO) National Agreement set forth in Part Three hereof, are intended to be and shall be in full settlement of all issues which were, or which the Union, the Locals or the Company had by law the right to make, the subject of collective bargaining in negotiations between them preceding the execution of this Agreement."

Noting that the union tried several times unsuccessfully to insert into the 1955-1960 agreement contractual limitations on subcontracting, once in preliminary negotiations in 1954 and again during negotiations for a limited reopening of the agreement in 1958,² the company urges upon us what is, essentially, the following argument: (1) The arbitration clause covers only grievances involving the interpretation or application of "a provision" of the agreement; (2) the above bargaining history and the "wrap-up" clause indicate that no "provision" of the 1955-1960 contract restricts the right of the company to subcontract; (3) therefore, the arbitration clause does not cover subcontracting since there is no substantive provision of the contract upon which it can operate.

No claim could be further from a claim based upon a reliance upon a clear and unambiguous clause excluding subcontracting from arbitration than this claim which the company here advances. What the company has done, under the guise of labeling a wrap-up clause as some sort of exclusionary clause, is to attempt to persuade us to decide that the grievance is not arbitrable because the grievance is groundless inasmuch as no substantive provision of the collective bargaining agreement, according to the company, forbids or restricts subcontracting. But whether a certain brand of company conduct is prohibited by a provision of a collective bargaining agreement will always be the ultimate question which the grievance itself will present; and whether this company and union ever agreed to permit unrestricted subcontracting of work, an issue upon which the presence or absence of a wrap-up clause would seem to have little if any bearing,³ is the very question which the arbitrator will...