LOCAL 616, INT. U. OF E., R. & M. WKRS. v. Byrd Plastics, Inc.

• Decision Date: 19 June 1970
• Docket Number: No. 18463.,18463.
• Parties: LOCAL 616, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant v. BYRD PLASTICS, INC.
• Court: U.S. Court of Appeals — Third Circuit

428 F.2d 23 (1970)

LOCAL 616, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant v. BYRD PLASTICS, INC.

No. 18463.

United States Court of Appeals, Third Circuit.

Argued May 19, 1970.

Decided June 19, 1970.

Richard Scupi, International Union of Electrical, Radio and Machine Workers, Washington, D. C. (Irving Abramson, Ruth Weyand, Washington, D. C., on the brief), for appellant.

Richard H. Zamboldi, Elderkin, Martin & Kelly, Erie, Pa. (Joseph T. Messina, Erie, Pa., on the brief), for appellee.

Before ALDISERT and ADAMS, Circuit Judges, and HIGGINBOTHAM, District Judge.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In the Steelworkers' trilogy,¹ the Supreme Court made it clear that the national labor policy favors the settlement of labor disputes through arbitration. This policy, however, does not provide the solution to the present dispute, but does set forth the guidelines for its resolution.

Local 616, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Union) and Byrd Plastics, Inc. (Employer) are parties to a collective bargaining agreement. The Union filed a complaint in the District Court for the Western District of Pennsylvania to enforce an arbitration award entered presumably on the basis of the collective bargaining agreement. The Employer filed a motion to dismiss alleging, inter alia, that the complaint failed to state a claim upon which relief could be granted since a prior arbitration award had decided the same grievance in favor of the Employer. The District Court granted the Employer's motion to dismiss, and the Union appealed.

The circumstances leading to the District Court proceeding began on October 24, 1967, when the Union, on behalf of employee, Rosalie Black, filed a "grievance" with the Employer alleging that the Employer violated the seniority provision of the collective bargaining agreement by failing to recall Rosalie Black from layoff. The Union filed its complaint as a "union grievance"² rather than an individual grievance, thus shortcutting the procedural steps set forth in the collective bargaining agreement. Although the Employer objected to the initiation of the grievance in this manner, the Union persisted in processing the grievance in this form and arbitration was scheduled before Arbitrator Maurice Nichols. After a hearing, Nichols made an award which sustained the position of the Employer, and dismissed the grievance because the employee had not signed it or processed it through the full grievance procedure outlined in the agreement. Nichols concluded his opinion by stating that the grievance was "dismissed without consideration of the merits of the claim for reinstatement".

Five days later, the grievance was refiled over the signature of the employee and processed in accordance with the outlined grievance procedure. The Employer took the position that the second filing was improper, and that it was not required to arbitrate the grievance again. The Employer based its contention on the dismissal of Rosalie Black's grievance by Arbitrator Nichols, and the clause of the collective bargaining agreement which states that the "decision of the Arbitrator on a matter properly before him within the limits of his jurisdiction shall be final and binding". The Union requested the Federal Mediation and Conciliation Service to appoint an arbitrator. Because the collective bargaining agreement states that "either party may request a panel or panels of arbitrators", and "if agreement cannot be reached on selection" of an arbitrator one shall be appointed, the Service appointed Arbitrator Allen Dash, Jr. Although notice was given the Employer, it refused to arbitrate the matter and the proceeding was conducted ex parte.

After the hearing, Arbitrator Dash decided that Arbitrator Nichols' decision did not bar Rosalie Black from re-filing her grievance because the collective bargaining agreement had no time requirement for initiating step one of the grievance procedure. Arbitrator Nichols then decided the case on the merits in Rosalie Black's favor, and awarded her back pay from the day the second grievance was filed.

The Union petitioned the District Court for enforcement of the award by Arbitrator Dash. Judge Willson granted the Employer's motion to dismiss because of lack of jurisdiction of the second arbitrator. In doing so, Judge Willson held that whether the Employer had to arbitrate the grievance a second time was a question of "substantive arbitrability" to be decided by a court rather than the second arbitrator, and that Arbitrator Nichols' award was binding and final so as to preclude the assertion of the grievance in a second arbitration proceeding. He considered the language in Arbitrator Nichols' opinion saying the dismissal was "without consideration of the merits" as "surplusage".

The issue on this appeal is whether the second grievance was arbitrable, or whether the decision of Arbitrator Nichols was "final and binding" so as to preclude further arbitration.

Contrary to the Union's contention, whether or not a company is required to arbitrate and the issues it must arbitrate are questions which are to be decided by a court. John Wiley & Sons v. Livingston, 376 U.S. 543, 546, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 570-571, 80 S.Ct. 1343, 4 L. Ed.2d 1403 (Brennan concurring); Halstead & Mitchell Co. v. United Steelworkers of America, 421 F.2d 1191 (3d Cir. 1969). The occurrence of the second arbitration does not alter the rule that a court must decide whether the parties agreed to submit a dispute to arbitration, since it was the position of the Employer that a...