LOCAL FRGT. DRIV., LOC. NO. 208 v. Braswell Motor Frgt. L., Inc.

• Decision Date: 10 February 1970
• Docket Number: No. 23174.,23174.
• Citation: 422 F.2d 109
• Parties: LOCAL FREIGHT DRIVERS, LOCAL NO. 208; Line Drivers, Local No. 224, etc., Plaintiffs-Appellees, v. BRASWELL MOTOR FREIGHT LINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.2d 109 (1970)

LOCAL FREIGHT DRIVERS, LOCAL NO. 208; Line Drivers, Local No. 224, etc., Plaintiffs-Appellees, v. BRASWELL MOTOR FREIGHT LINES, INC., Defendant-Appellant.

No. 23174.

United States Court of Appeals, Ninth Circuit.

February 10, 1970.

Theodore W. Russell (argued), of Russell & Schureman, Los Angeles, Cal., for appellant.

Albert Brundage (argued), of Brundage & Hackler, Los Angeles, Cal., for appellees.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

The plaintiff unions brought this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to confirm as an arbitration award a decision of a labor-management committee formed under a collective bargaining agreement to consider grievances. The district court confirmed the award. We affirm.

Plaintiffs are local affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Braswell Motor Freight Lines, Inc. (Braswell) is an interstate common carrier by motor vehicle. Braswell's operations have been carried on through "Eastern" and "Western" Divisions and through a subsidiary company, Braswell Freight Lines, Inc. (Freight Lines). Freight Lines was merged into Braswell on July 1, 1964, and Braswell has since then conducted the former operations of Freight Lines as a separate division.

Each of the three divisions operates in a different geographic area and has its own history of labor relations. The Eastern Division employees have at all times been non-union. Freight Lines employees have been represented by certain local Teamster affiliates (the Southern Locals). Freight Lines was a member of a multi-employer group which had negotiated a contract with the Southern Locals expiring on January 31, 1961. Before the termination of that contract, Freight Lines withdrew from its employer group and negotiated for a new contract directly with the Southern Locals, but without reaching an agreement. The Southern Locals went on strike against Freight Lines on April 23, 1962, and on April 28, 1962, they filed unfair labor practice charges against Freight Lines.¹

Braswell's Western Division employees are represented by the plaintiff unions among others. Braswell is a member of the California Trucking Association, Inc. (CTA) which represents it for bargaining purposes. CTA on September 15, 1961, entered into "the 1961 Western Master Agreement" with the unions, which ran from July 1, 1961 to June 30, 1964, and which with supplemental agreements covered Braswell's Western Division employees.

The grievance underlying the present dispute between the parties arose from a strike by the unions against Braswell's Western Division from June 11, 1962 to April 1, 1963. The strike was called and maintained by the unions as a protest against the unfair labor practices allegedly committed by Freight Lines against the Southern Locals. Braswell continued operations throughout the strike period by hiring other employees to replace the strikers. After the strike ended the unions demanded that Braswell restore the strikers to their former positions, without loss of seniority. Braswell refused to do so on the ground that the strikers had been permanently and legally replaced and had ceased to be employees. Braswell was willing to employ the strikers as new employees as positions became available. The 1961 Agreements remained in force.

The unions sought to vindicate their contentions regarding the strikers by initiating proceedings under the grievance provisions of the 1961 Master Agreement.² This Agreement provided for grievance committees composed of equal numbers of union and management representatives for various geographic areas covered. The relevant committee in this case was the Southern California Joint Area Committee. In this opinion, we refer to it as the 1961 Joint Area Committee. At a hearing before this committee Braswell entered a special appearance challenging the right of the committee to hear and determine the grievances. The Committee voted to overrule these objections, and to hear the cases. At the hearing on the merits, Braswell again specially appeared. The Committee proceeded, but deadlocked on the merits. The 1961 Agreement provided that at this stage unresolved disputes would be heard by a Joint Western Committee. It is referred to in this opinion as the 1961 Joint Western Committee. On November 12, 1963, the 1961 Joint Western Committee postponed hearing the cases until the unfair labor practice charges before the NLRB regarding Freight Lines and the Southern Locals could be resolved.

Shortly thereafter, Braswell, through CTA and other employers and employer groups, entered into the "1964 National Master Agreement" for the period July 1, 1964 to March 31, 1967. The grievance machinery under this agreement called for a similar grievance committee structure to include a number of Joint State Committees; we refer to the pertinent committee as the 1964 Joint State Committee, a single Joint Western Area Committee, which we refer to as the 1964 Joint Western Area Committee, and Multi-Conference Committee, which we refer to as the 1964 Multi-Conference Committee.

The 1964 Agreement did not specifically provide that its machinery would be used to resolve disputes arising under the 1961 Agreements. However, the 1964 Joint State Committee retained the membership and functions of the 1961 Joint Area Committee, and the 1964 Joint Western Area Committee retained the membership and functions of the 1961 Joint Western Committee, substantially unchanged.

The 1964 Joint Western Area Committee retained the dispute after the 1964 Agreement went into force. On July 30, 1965 the National Labor Relations Board decided the unfair labor practice case of the Southern Locals, finding that Braswell had committed unfair labor practices. (See 154 N.L.R.B. 101 (1965).) The 1964 Joint Western Area Committee then proceeded to consider the dispute, but it deadlocked on the actual disposition of the case. The 1964 Multi-Conference Committee, a creature only of the 1964 Agreement, then considered the case because of the deadlock below. It decided that the 1964 Joint Western Area Committee had jurisdiction to determine the dispute and directed it to determine the grievances on the merits. The 1964 Joint Western Area Committee proceeded to do so, sustaining the grievance on the merits and ordering that strikers who thereafter made an unconditional offer to return to work should be offered reinstatement with full seniority from their last original date of hire. The Committee did not award back pay.

The district court's confirmation of their decision is challenged here on three grounds. Braswell claims (1) that the grievance committees set up under the 1964 Agreements had no jurisdiction to hear grievances arising under the 1961 Agreements, (2) that the committee's decision is not enforceable as an arbitration award because it is not a final, definitive settlement of the dispute, and (3) that the disputes raised by the unions were not grievable under the 1961 Agreement.

1. Did the 1964 Agreement's grievance committees have jurisdiction?

The right to arbitrate disputes or to process grievances is wholly dependant upon the terms of the collective bargaining contract. United Steelworkers v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409; Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 2 Cir., 1962, 312 F.2d 181, 184. And, "the question of arbitrability is for the courts to decide." United Steelworkers v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 583 n.7, 80 S.Ct. at 1353. Here, the grievances arose under the 1961 Agreements but were decided by a Committee created by the 1964 Agreements. Braswell's claim that the Committee lacked jurisdiction rests upon the absence of specific language in the 1964 Agreements granting the new committees jurisdiction over unresolved disputes arising out of the earlier agreement. The unions assert that the jurisdictional issue is "procedural" and accordingly should be resolved by the arbitrator and also that the parties' intent during bargaining for the 1964 Agreements was that pending grievances would be processed under the new agreement's procedures.

The argument that the jurisdictional issue was "procedural" and thus left to the grievance committee to decide rests on an interpretation of John Wiley and Sons, Inc. v. Livingston, 1964, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. John Wiley warned against arbitrarily classifying "intertwined issues of `substance' and `procedure' growing out of a single dispute and raising the same questions on the same facts" (376 U.S. at 557, 84 S.Ct. at 918), and further indicated that:

"Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, `procedural\' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." (Id.)

Both parties agree that the relevant agreement to be applied to the merits of this dispute is the 1961 Agreement. The question is only whether the parties were to use the 1964 system of joint grievance committees to complete procedures begun before the 1961 Committee.

Questioning the propriety of a given forum raises issues which would probably not ordinarily be considered procedural. Here, for example, the focus of the grievance machinery shifted from a regional basis in the 1961 Agreement to the national emphasis in the 1964 Agreement. The 1964 Multi-Conference Committee was added as a new and additional step in the review heirarchy, and it had as members people who were further removed from the influence of the parties. In addition, the new grievance procedure was broken down by trades where the earlier procedure applied to all employees in the eleven western states.

Nonetheless, resolution of the grievance had been stayed by the...