LOCAL U. NO. 787, INTER. U. OF E., R. & M. WKRS. v. Collins Radio Co., 19508.

• Decision Date: 29 June 1963
• Docket Number: No. 19508.,19508.
• Citation: 317 F.2d 214
• Parties: LOCAL UNION NO. 787, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant, v. COLLINS RADIO COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

317 F.2d 214 (1963)

LOCAL UNION NO. 787, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Appellant, v. COLLINS RADIO COMPANY, Appellee.

No. 19508.

United States Court of Appeals Fifth Circuit.

May 8, 1963.

Rehearing Denied June 29, 1963.

Marvin Menaker, Wilson & Menaker, Dallas, Tex., for appellant.

George E. Seay, Malone, Seay & Gwinn, Dallas, Tex., for appellee.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

In assaying the correctness of the District Court's action denying the Union's application for an order to compel arbitration, § 301(a), 29 U.S.C.A. § 185(a), the critical issue is whether the contract excluded the particular dispute from the grievance machinery. We conclude that it did and therefore affirm.

This case, as we see it, presents not a single new issue. Its disposition depends on application of now well settled principles. The only difficulty is the difficulty inherent in the exercise of the judicial function as now so narrowly circumscribed by the celebrated trilogy¹ without transgressing the posted off-limits of the more spacious domain preserved exclusively for the arbiter.

These principles may be broadly stated. Arbitration is a contractual procedure. The right to demand, or the duty to utilize, arbitration depends on the contract. Therefore, as with a traditional dispute, whether the contract requires arbitration is a question for judicial determination. But in the judicial ascertainment of this threshold problem, the Court must persistently and conscientiously resist the tempting process of determining, first, that the asserted grievance is palpably unfounded on its own intrinsic merits, so therefore it cannot be concluded that the parties agreed to arbitrate such a dispute. Such approach is indispensable for a scheme which assumes that for their own good reasons, the parties have bargained for a determination of controversies by an arbiter rather than a court. For, says the Court, the "* * * grievance procedure is * * * a part of the continuous collective bargaining process."² Recognizing that "* * * Congress * * * has by § 301 * * * assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate * * *" since "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit * * *," the Court several times emphasizes that "* * * the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance * * *."² The Court implements this in unmistakable terms. "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. Doubt should be resolved in favor of coverage."² Resolving doubts in favor of coverage "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail * * *."² In nearly every instance we have found that evidence wanting.³

Although the receipt of certain portions of this type of evidence is itself an asserted ground of error by the Union, the parties in their briefs and arguments both recognize that it is essential for the Court to have a knowledge of the general background and setting of this dispute.

The collective bargaining contract was effective July 1, 1960, for a period of one year. There had been several contracts for the prior years, the last one expiring April 30, 1960. After May 1, 1960, a strike took place. After a week, the Employer resumed operations with a skeleton force. By letter of May 25, 1960, it advised the striking employees that it would start on May 31 hiring permanent replacements for those failing to return to their jobs. Between that date and June 5, at which time the strikers made an unconditional offer to return to work, the Employer had hired 65 persons as permanent replacements. Contract negotiations, in the meantime, were going on. In response to a specific request by the Union, the Employer on June 14 delivered a list of those permanently replaced.⁴ On the same date (June 14) the Employer sent a letter to all of the 65 permanently replaced notifying each that his job had been filled with a permanent replacement. The letter also stated that if the recipient wished to be considered, with other applicants, for employment as a new employee as jobs opened up, the employment office should be advised. On June 16 the Union filed an unfair labor practice charge with the NLRB for having discharged these same specified 65 permanently replaced persons. The charge asserted that these persons had been discharged "because of their membership and activities in behalf of" the Union and that these actions "interfered with, restrained and coerced * * * the employees in the exercise of rights guaranteed in section 7 of the Act."⁵ The status of these workers listed as permanently replaced was also the subject of extensive bargaining as the negotiations culminating in the contract of July 1, 1960, were carried on. The Union proposed that the Employer (1) reinstate all strikers with full seniority rights, (2) that it show the specified 65 on the hiring list, and (3) that it arbitrate the question of whether or not these listed persons were permanently replaced. The Employer rejected each of these proposals. The Employer's response was an insistence on exclusionary clauses in the grievance procedure. It also took the position that those persons who had not been permanently replaced would be put on a recall list, but those who had been permanently replaced would not. The Union subsequently accepted this. In the settlement agreement this was accomplished by attaching a list of employees to be recalled to work. This list purposefully omitted all of the 65 persons who had been permanently replaced (including the 38 in controversy here).

The contract, made in this setting, has two provisions which we regard as of decisive importance. First, in its opening paragraph, it expressly states that "This agreement is made between the * * * Company * * * and the * * * Union * * * for and in behalf of the employees now employed and hereafter employed by the Company" in its Dallas plants.⁶ Second, in the "Grievance Procedure" it defined the controversies as those "between the employees and the Company" and expressly excluded those arising out of pre-contract occurrences and any controversy as to whether an individual had been permanently replaced prior to its effective date.⁷

It was in this context that the Union on September 22, 1960, submitted this grievance:

"We protest the unfair action of the company by violating the seniority provisions of the current agreement. The company by its discriminatory action has not allowed employees to use their seniority rights, as granted under the terms of the contract. We ask for this condition to be corrected. Further, we ask for full compensation as a result of the above improper company action."

To this was attached the list of 38 names. The Employer refused to process the grievance and likewise rejected the Union's demand for arbitration.

While the Court in a suit to compel arbitration is generally "* * * confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract,"⁸ both parties in effect agree that it took extraneous evidence to reflect what the face really was. Thus, while it was stated in terms of discriminatory denial of seniority rights,⁹ the evidence demonstrated that the controversy was actually a claim of unjustified refusal to rehire the 38 listed persons.

Not only did the evidence reveal this, but the Union candidly conceded that each of the 38 men "had no status as employees prior to the execution of the July 1st collective bargaining agreement" as each of them was "permanently replaced prior to the execution of this contract." The Union likewise conceded that the contract excluded from arbitration the question whether they had been permanently replaced. The whole case turned on the claim that "subsequent to the execution of" the July 1 contract "these men * * * obtained a status as employees." In other words the question, as the Union's trial counsel phrased it, "is whether or not something happened subsequent to this agreement to give a new status" to these men.

It was at this point that the Union offered evidence, not so it says to prove the ultimate merits, but to show at least an arguable basis for the contention that subsequent to July 1, the Employer had, in effect, rehired these men. Starting with this approach, the Union further asserted that whether this was the fact, or whether the evidence was sufficient from which to infer that conclusion, were questions solely for the arbiter.

The so-called evidence was limited to some IBM run sheets sent from the Employer's accounting department to the Union office after July 1, 1960, showing names, badge numbers of employees from whom union dues had been deducted under check-off authorizations. The names of the 38 appeared on the list. Assuming that this piece of evidence was admissible over the objection of the Employer,¹⁰ it does not carry the day for the Union. Since the Union in seeking court enforcement of arbitration had to show that there was a controversy "on the face" of the asserted grievance, it necessarily opened up the evidence as it bore on that restricted, limited phase. While the Court is not permitted to weigh conflicting evidence, it had a right and duty to determine whether there was any evidence showing a grievance which the parties had agreed to arbitrate. From that standpoint the evidence was simply uncontradicted. The evidence from the Employer, the Union witnesses, and the stipulations of its own counsel, showed without a doubt that not a single one of these 38...