LODGE 743, INT. ASS'N OF MACH. v. United Aircraft Corp.

• Decision Date: 01 October 1964
• Docket Number: Docket 28595.,No. 384,384
• Citation: 337 F.2d 5
• Parties: LODGE 743, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Plaintiff-Appellee, National Labor Relations Board, Intervenor, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellant. LODGE 1746, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Plaintiff-Appellee, National Labor Relations Board, Intervenor, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

337 F.2d 5 (1964)

LODGE 743, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Plaintiff-Appellee, National Labor Relations Board, Intervenor, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellant.

LODGE 1746, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Plaintiff-Appellee, National Labor Relations Board, Intervenor, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellant.

No. 384, Docket 28595.

United States Court of Appeals Second Circuit.

Argued May 26, 1964.

Decided October 1, 1964.

Mozart G. Ratner, Plato E. Papps, Washington, D. C., William S. Zeman, Hartford, Conn., for appellees.

Joseph C. Wells, Winthrop A. Johns, Washington, D. C. (Reilly & Wells, Washington, D. C., of counsel), for appellant.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Solomon I. Hirsh, Glen M. Bendixsen, Attys., N. L. R. B., for intervenor.

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

Appellees (hereinafter the Union) brought suit in the United States District Court for the District of Connecticut under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185 (a), alleging that appellants (hereinafter the Company) had violated a strike settlement agreement dated August 11, 1960. The Company counterclaimed, also under § 301(a), alleging a violation by the Union of a subsequent arbitration submission agreement dated August 24, 1960, and requesting declaratory relief, injunctive decrees, and damages. The Union, joined by the National Labor Relations Board as an intervenor, moved to dismiss the counterclaim on several grounds, including failure to state a claim upon which relief could be given, and on August 1, 1963 the motion was granted. The opinion below is reported at 220 F.Supp. 19. The Company appeals to this court under 28 U.S. C. § 1292(a) (1), which, insofar as it is relevant, authorizes appeals from interlocutory orders denying injunctive relief.¹

The claims and counterclaims in this suit arose out of a strike called by the Union at four Company plants in June, 1960. The strike ended in failure two months later with the conclusion of a settlement agreement which provided, in part, for the recall to work of the strikers according to a complex formula. The Company, however, refused to apply the agreement to fifty employees whom it accused of misconduct during the strike. The Union, in response, contended that these employees had not engaged in conduct which merited them less favorable treatment than the other strikers received. Unable to reach an understanding, the parties executed an arbitration submission agreement which provided in part:

"To resolve this issue * * * finally and completely, and without recourse whatsoever to any appeal or review under any State or federal laws by the Unions, or by the Company, or by any individual employee whose name is listed on Exhibit C attached hereto, the Unions (acting for and on behalf of themselves and in their capacity as representatives of the said individual employees so listed) and the Company agree as follows:

"1. The Honorable Raymond E. Baldwin, Chief Justice of the Supreme Court of Errors for the State of Connecticut, may appoint, and is hereby requested to appoint, a panel of three retired judges of the said Court (including a fourth judge to act as an alternate in this matter) to sit as an impartial board of arbitration to hear and decide finally and completely the aforesaid issue concerning the reinstatement rights of each of the striking employees whose names are listed on Exhibit C.

* * * * * *

"4. The panel shall have no jurisdiction or authority to award back pay to any employee involved in this matter, or to assess against any of the parties any monetary award or penalty, but shall have full, complete and final jurisdiction and authority to determine and decide whether any individual whose name is listed on Exhibit C attached hereto should, under all of the circumstances, be accorded all, or any part, or none of the rights and privileges accorded other striking employees under the strike settlement agreements * * *."

By the time of the arbitration hearing fourteen names had been dropped from the list, and during the hearing the Union withdrew its claims in behalf of six others. As for the remaining thirty employees, the arbitrators found them guilty of strike misconduct and deprived them of some or all of their rights under the strike settlement agreement.

Undaunted, beginning in December 1960, the Union filed unfair labor practice charges with the National Labor Relations Board under § 8(a) (3) and § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (3), 158 (a) (1), alleging that the Company was discriminating against approximately 3500 employees, including the thirty-six whose names remained on the list at the start of the arbitration hearing, by denying them reinstatement rights because of their participation in the strike. In February, 1963, the General Counsel of the Board issued a complaint based on the Union's charges, and in May, 1963, a hearing began before a trial examiner.

Meanwhile, the Union had also brought suit under § 301(a) in December, 1961, claiming a violation by the Company of the strike settlement agreement. In response, the Company, in May, 1963, filed the counterclaim at issue in this appeal, alleging that the Union had violated the arbitration submission agreement by charging the Company with an unfair labor practice as to the thirty-six employees. The Company relied on the provision of the arbitration agreement which sanctioned a final determination of the rights of the thirty-six employees, "without recourse whatsoever to any appeal or review under any State or federal laws." As injunctive relief, the Company requested a decree requiring the Union to withdraw its unfair labor practice charges regarding the thirty-six employees, and another decree forbidding the Union from attacking the arbitration award in any other way.

In dismissing the counterclaim for failure to state a claim upon which relief could be granted, the court below held:

"Insofar as the arbitration agreement of August 24, 1960, attempted to preclude by contract the Union or its members from filing unfair labor practice charges against the company with the National Labor Relations Board, it is contrary to Federal law and is unenforceable." 220 F.Supp. 19, 23.²

For the reasons now to be stated, we agree.

At the outset we are faced with a question concerning interpretation of the arbitration agreement. The Union argues that it was not the intent of the parties to bar the filing of unfair labor practice charges before the Board, or at least the filing of charges such as are involved in this case. Alternatively, even if the provision of the agreement can be construed as a waiver of the right to file unfair labor practice charges, the Union contends it was not sufficiently clear and unmistakable to be given legal effect. These arguments, however, raise in part questions of fact as to the circumstances of the agreement that cannot be dealt with on a motion to dismiss.³ For the purposes of this appeal we must accept the allegation of the Company that the arbitration agreement effectively barred the filing of unfair labor practice charges in connection with the refusal of the Company to grant the thirty-six employees full reinstatement rights.

Turning now to the nub of the case, we must decide whether § 301(a) authorized the lower court to grant enforcement of the arbitration agreement as interpreted above. In performing this task, the Supreme Court has instructed us to consult "the policy of our national labor laws," including "express statutory mandates." Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S. Ct. 912, 918, 1 L.Ed.2d 972 (1957). We conclude that the policy and the express mandates of the National Labor Relations Act are opposed to the enforcement of that part of the arbitration agreement which bars the Union from maintaining unfair labor practice charges before the Board.

The standard rule in cases such as this, enunciated in numerous decisions of the Supreme Court, this court, and the courts of other circuits, is that the right to resort to the Board for relief against unfair labor practices cannot be foreclosed by private contract. For example, see J. I. Case Co. v. N. L. R. B., 321 U. S. 332, 336-339, 64 S.Ct. 576, 88 L.Ed. 762 (1944); National Licorice Co. v. N. L. R. B., 309 U.S. 350, 359-361, 60 S. Ct. 569, 84 L.Ed. 799 (1940); N. L. R. B. v. Radio Officers' Union, 196 F.2d 960, 965 (2 Cir. 1952), aff'd, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954); N. L. R. B. v. E. A. Laboratories, Inc., 188 F. 2d 885, 887 (2 Cir. 1951), cert. denied, 342 U.S. 871, 72 S.Ct. 110, 96 L.Ed. 655 (1951); International Union of Elec. Workers v. N. L. R. B., 328 F.2d 723, 727 (3 Cir. 1964); N. L. R. B. v. Threads, Inc., 308 F.2d 1, 8 (4 Cir. 1962). Nor is an arbitration award of any greater effect in this respect. N. L. R. B. v. Bell Aircraft Corp., 206 F.2d 235, 237 (2 Cir. 1953); N. L. R. B. v. Hershey Chocolate Corp., 297 F.2d 286, 293 (3 Cir. 1961); N. L. R. B. v. International Union, UAW, 194 F.2d 698, 702 (7 Cir. 1952).

These decisions are based on the express language of § 10(a) of the National Labor Relations Act, 29 U.S.C. § 160(a), which provides in part:

"The Board is empowered * * * to prevent any person from engaging in any unfair labor practice * * * affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: * * *."

This express statutory mandate, in turn, reflects the theory enunciated by the Supreme Court in National Licorice Co. v. N. L. R. B.: "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of...