Local Union No. 77, Intern. Broth. of Elec. Workers v. Public Utility Dist. No. 1, Grays Harbor County, 7058-8-II

• Citation: 696 P.2d 1264,40 Wn.App. 61
• Decision Date: 08 March 1985
• Docket Number: No. 7058-8-II,7058-8-II
• Court: Court of Appeals of Washington
• Parties: LOCAL UNION NO. 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellant, v. PUBLIC UTILITY DISTRICT NO. 1, GRAYS HARBOR COUNTY, Washington, Respondent.

Page 61

40 Wn.App. 61

696 P.2d 1264

LOCAL UNION NO. 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, Appellant, v. PUBLIC UTILITY DISTRICT NO. 1, GRAYS HARBOR COUNTY, Washington, Respondent.

No. 7058-8-II.

Court of Appeals of Washington,

Division 2.

March 8, 1985.

Richard H. Robblee, Seattle, for appellant.

Dustin C. McCreary, Seattle, for respondent.

REED, Judge.

Local 77 of the International Brotherhood of Electrical Workers (Union) appeals a summary judgment that dismissed its action to compel the Grays Harbor Public Utility District (PUD) to arbitrate a labor dispute. We reverse.

For several years the Union has been the recognized bargaining agent for those categories of employees specifically listed in its collective bargaining agreement with the PUD. Among the "types of employment" listed in the agreement are several grades of "metermen." According to the affidavits, ¹ these metermen as a normal part of their employment over the years have provided PUD customers energy conservation advice when an "on-sight analysis" indicated that a high energy usage was not the result of a defective meter. Similarly, non-union PUD employees also gave conservation advice based on a computer analysis of a customer's energy use. In 1976, however, the PUD created a home energy audit program run by a non-union "Administrative Assistant" who both operated the computer and conducted in-field "energy audits." When in 1981 two more non-union positions were added to this program, the Union filed a grievance asserting that the "Energy Conservation Auditor should be a Bargaining Unit job." The PUD responded that the allegation was "not a grievance," and subsequently refused the Union's demand for arbitration. Although the trial court apparently agreed with this reasoning, we do not. ²

Because PUD employees have the same collective bargaining rights as do similar employees in private industry, RCW 54.04.170, the arbitrability of this dispute is determined by reference to the substantive principles of federal labor law. See Textile Workers Union of Am. v. Lincoln Mills of Alabama, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957); Meat Cutters Local 494 v. Rosauer's Super Markets, Inc., 29 Wash.App. 150, 153, 627 P.2d 1330, review denied, 96 Wash.2d 1002 (1981); Retail Store Employees Local 631 v. Totem Sales, Inc., 20 Wash.App. 278, 281, 579 P.2d 1019 (1978). Hence, our sole inquiry is to examine the arbitration clause of the collective bargaining agreement and determine whether the parties bound themselves to arbitrate this particular dispute. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960); Meat Cutters Local 494 v. Rosauer's Super Markets, Inc., 29 Wash.App. at 154, 627 P.2d 1330; see Retail Store Employees Local 631 v. Totem Sales, Inc., 20 Wash.App. at 282, 579 P.2d 1019. In so doing, we begin with the presumption that all questions upon which the parties disagree are within the arbitration provisions unless negated expressly or by clear implication. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. at 581, 80 S.Ct. at 1352; General Teamsters Local 231 v. Whatcom Cy., 38 Wash.App. 715, 717, 687 P.2d 1154 (1984); Council of Cy. & City Employees v. Spokane Cy., 32 Wash.App. 422, 425-26, 647 P.2d 1058, review denied, 98 Wn.2d 1002 (1982).

The PUD first asserts that a contractual question requiring arbitration is not involved because the Union's claim concerns "work and employee classifications which are not included in the Agreement." However even frivolous claims are arbitrable, and a court has no business weighing the merits of a grievance or determining whether there is particular language in the labor agreement to support a claim. Such decisions are for the arbitrator; a court's inquiry is at an end if the complaint on its face calls for an interpretation of the agreement. United Steelworkers of Am. v. American Mfg. Co., 363 U.S. at 568, 80 S.Ct. at 1346; Hanford Guards Union of Am. Local 21 v. General Elec. Co., 57 Wash.2d 491, 494, 498, 358 P.2d 307 (1961); Meat Cutters Local 494 v. Rosauer's Super Markets, Inc., 29 Wash.App. at 154, 627 P.2d 1330.

Here, the Union alleges that the creation of non-union energy conservation positions was a "transfer of bargaining unit work" traditionally performed by a position already listed in the collective bargaining agreement. In order to determine if such a delegation of a union worker's duties and responsibilities has occurred, an interpretation of the contractual term "metermen" arguably is required. Where a provision of a collective bargaining agreement is subject to two interpretations, the one that would require arbitration should be adopted. International Brotherhood of Elec. Workers Union Local 483 v. Tacoma, 20 Wash.App. 435, 437, 582 P.2d 522 (1978). Because we cannot characterize the alleged need for contract interpretation as "patently baseless," we hold that the instant dispute falls within the scope of the parties' labor agreement. Hanford Guards Union of Am. Local 21 v. General Elec. Co., 57 Wash.2d at 494, 358 P.2d 307.

The PUD next claims that the parties agreed to exclude the controversy from arbitration, cf. Nolde Bros., Inc. v. Local 358 Bakery & Conf. Workers Union, 430 U.S. 243, 255, 97 S.Ct. 1067, 1074, 51 L.Ed.2d 300 (1977), and that it cannot be required to "submit to arbitration any dispute which [it] has not agreed so to submit." See United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. at 582, 80 S.Ct. at 1352. Arbitration was "expressly" negated, the argument continues, because the agreement defines a "grievance" as a conflict over "express terms" ³ and here neither the energy audit positions nor their job descriptions were expressly included in the labor contract. However, a similar argument relying on a provision limiting arbitration to "specifically provided" obligations has been held insufficient to overcome the strong presumption favoring arbitrability. Meat Cutters Local 494 v. Rosauer's Super Markets, Inc., 29 Wash.App. at 156-59, 627 P.2d 1330. The PUD's attempts to distinguish this precedent are not persuasive.

Alternatively, the PUD alleges that its duty to arbitrate was negated by "clear implication." It argues that the contract twice was renegotiated after the development of the "energy audit" program, but no attempt was made to incorporate the non-union work into the labor agreement's list of union positions. Absent an express provision excluding a particular grievance, however, only the most forceful evidence of a purpose to exclude a claim from arbitration can prevail. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. at 584-85, 80 S.Ct. at 1353-54; General Teamsters Local 231 v. Whatcom Cy., 38 Wash.App. at 718-19, 687 P.2d 1154. Assuming arguendo that bargaining history may be considered even when it results in construing substantive contract provisions "through the back door," see R. Gorman, Basic Text on Labor Law at 561-63 (1976), there is no evidence that, prior to the contract negotiations, the Union actually was aware of the energy conservation program or its activities. An order to arbitrate will 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." United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S at 582-83, 80 S.Ct. at 1352-53; Council of Cy. & City Employees v. Spokane Cy., 32...