Locals 2222, 2320-2327, Intern. Broth. of Elec. Workers, AFL-CIO v. New England Tel. and Tel. Co.

Decision Date12 August 1980
Docket NumberP,No. 80-1142,AFL-CI,80-1142
Parties105 L.R.R.M. (BNA) 2211, 59 A.L.R.Fed. 488, 89 Lab.Cas. P 12,191 LOCALS 2222, 2320-2327, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,laintiffs, Appellees, v. NEW ENGLAND TELEPHONE AND TELEGRAPH CO., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Joseph C. D'Arrigo, Boston, Mass., with whom William J. McDonald and C. Duane Aldrich, Boston, Mass., was on brief, for defendant, appellant.

Warren H. Pyle, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, P.C., Boston, Mass., was on brief for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MAZZONE, * District Judge.

CAMPBELL, Circuit Judge.

New England Telephone and Telegraph Company (the "Company") appeals from an order of the district court returning a labor arbitration award to the original arbitrators.

The Company discharged John Leary, an employee, on October 7, 1976. The Union 1 promptly filed a grievance protesting Leary's discharge and later demanded arbitration when the dispute could not be resolved. Under Article 9 of the collective bargaining agreement, the Board of Arbitration consisted of "one representative selected by the Union, one representative selected by the Company, and an impartial chairman mutually chosen by the parties." A hearing was held on October 20, 1977, the parties having submitted the following issue for arbitration:

"Was the discharge of John Leary without just cause within the meaning of Article 9.03(a) of the parties' collective bargaining agreement . . . . If so, what should the remedy be?"

On January 24, 1978, the Board of Arbitration, with the Company member dissenting, issued an opinion and award. The award provided that

"The discharge of John Leary was without just cause. He should be reinstated with full seniority and should be made whole for his loss of earnings since April 1, 1977."

Thereafter the Union and the Company disagreed as to the amount of Leary's lost earnings; 2 and on January 15, 1979 the Union filed the present complaint in the district court under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). The complaint outlined the areas of disagreement between the Union and Company and requested "that the Court order the Company to resubmit the dispute between the parties as to the remedy due John Leary to the same Board of Arbitration which issued the original award."

On March 19, 1979, the Company moved to dismiss, contending 1) that the complaint was time barred by applicable statutory limitations periods "specified in either the Federal or the Massachusetts Arbitration Acts"; and 2) that the Union had failed to exhaust the grievance/arbitration procedure detailed in the governing collective bargaining agreement for the resolution of disputes arising out of that agreement.

The Union filed both an opposition and a "Motion to Remand to Board of Arbitration"; the latter repeated the Union's request for resubmission to the original Arbitration Board "for the purpose of determining the amount of wages due the employee." On January 18, 1980, the district court, in a brief memorandum and order, denied the Company's motion to dismiss and granted the Union's request for remand, sending the dispute over computation of lost earnings back to the original Board of Arbitration. The court found no time barrier to commencement of the section 301 action. And, concluding that the issue before it concerned the "computation of the amount of loss of earnings awarded by the Board" rather than "the interpretation or application of the provisions of the collective bargaining agreement," the district court ruled the Union was not bound to re-exhaust the full grievance arbitration procedure.

I.

The first question is that of appellate jurisdiction. The Union contends the district court's order denying the Company's motion to dismiss and remanding the back pay issue to the Arbitration Board "is not a 'final decision' within the meaning of (28 U.S.C.) § 1291 nor the equivalent of an 'interlocutory order . . . granting (an) injunction' appealable under § 1292(a)(1)." The Company responds that the court's remand order was, in fact, clothed with finality as it granted "the full relief sought by the Union in its complaint." In the alternative the Company argues that the present order is "analogous to an injunction and hence appealable . . . ."

Although the appealability of a district court's order entered in the context of arbitration proceedings has frequently been discussed, no entirely satisfactory body of guiding principles has emerged. 3 In the present case, as in others, the "medieval if not Byzantine peculiarities of this area of the law," New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183, 189 (1st Cir. 1972), make it difficult to identify the controlling rule or exception.

The matter of appealability is, moreover, intertwined with one of the central substantive issues, namely, the proper characterization of the present section 301 action. In such circumstances, there is sometimes much to be said for candidly deciding the merits rather than toying with them in a jurisdictional minuet. See, e. g., Clark v. Kraftco Corp., 447 F.2d 933, 935 (2d Cir. 1971), and authorities cited. The Supreme Court recently said in a case where appealability was found as a "practical matter" but was, in fact, far from clear: "(N)ow that the case is before us . . . the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided." American Export Lines, Inc. v. Alvez, --- U.S. ----, ----, 100 S.Ct. 1673, 1676, 64 L.Ed.2d 284 (1980) (quoting Gillespie v. United States Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964)). Given the closeness of the jurisdictional question, the confluence of the appealability issue with one of the central points raised by the appeal, and the fact that as we sustain the district court, the resolution of the appealability issue does not affect the outcome of the case, we shall assume, without deciding, that the appeal is properly before us. See Manning v. Trustees of Tufts College, 613 F.2d 1200 (1st Cir. 1980); Massachusetts v. Hale, 618 F.2d 143, at 145 n.3 (1st Cir. 1980); Robbins v. Prescott Publishing Co., Inc., 614 F.2d 3 (1st Cir. 1980).

II.

The Company reasserts before us the two arguments previously raised in its unsuccessful motion to dismiss filed with the district court. We shall discuss these in reverse order, turning first to the Company's contention that in settling the back pay dispute the Union should have been required to resort anew to the full grievance/arbitration mechanism detailed in the parties' collective bargaining agreement. The agreement provides for grieving complaints "involving the interpretation or application of any of the provisions" of said agreement. Here, the collective bargaining agreement explicitly attempts to define the scope of the back pay remedy granted to reinstated employees following a wrongful discharge by providing:

"If the Board of Arbitration finds that the discharge or disciplinary action was without just cause, the employee shall be reinstated and may receive his straight time rate of pay for time lost, less any amount, other than wages, received by the Company at the time of dismissal."

The Company thus argues that the resolution of any dispute as to the back wages due a wrongfully discharged employee initially and necessarily involves a question of the proper meaning of this provision in the bargaining agreement. As a result, the Company argues, the bargaining agreement provision requiring full grieving of complaints involving interpretation or application of that agreement here requires that the Union channel the instant back pay dispute through the entire grievance/arbitration process.

While the Company's position has some initial plausibility, we do not find it persuasive. We start with the fact that it is firmly established within the federal labor law that a district court may, in the context of a section 301 proceeding, resubmit an existing arbitration award of the type here in issue to the original arbitrators for "interpretation" or "amplification." 4 This judicial power, which is in contrast to usual common law principles 5 and requires no affirmative sanction in the contract or in any statutory provision, has been established by the federal courts in carrying out their mandate to "fashion from the policy of our national labor laws" a substantive body of law applicable in section 301 cases, Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957). In large measure, it seems to have developed as a necessary corollary to the courts' reluctance themselves to interpret either collective bargaining agreements or arbitration awards based on the construction of such agreements. Whatever the genesis, there can be no question that the power exists.

It follows that the instant situation does not involve any question of the court's general "power" to resubmit to the original Board of Arbitration. The only question is whether in the present circumstances it would be more appropriate for a court to channel the dispute back through the entire grievance/arbitration process rather than to simply send it again to the original arbitrators.

There is not a great deal of authority bearing directly on this issue. In San Antonio Newspaper Guild Local 25 v. San Antonio Light Division, 481 F.2d 821 (5th Cir. 1973), the Fifth Circuit considered a somewhat analogous problem in a case involving a dispute over the remedy provision of a reinstatement order that was framed in terms nearly identical to those used in the present award. There, as here, the Union and Company had failed to agree on the financial...

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