LODGE NO. 12, ETC. v. Cameron Iron Works, Inc., 18716.

• Decision Date: 28 July 1961
• Docket Number: No. 18716.,18716.
• Citation: 292 F.2d 112
• Parties: LODGE NO. 12, DISTRICT NO. 37, INTERNATIONAL ASSOCIATION OF MACHINISTS, Appellant, v. CAMERON IRON WORKS, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

292 F.2d 112 (1961)

LODGE NO. 12, DISTRICT NO. 37, INTERNATIONAL ASSOCIATION OF MACHINISTS, Appellant, v. CAMERON IRON WORKS, INC., Appellee.

No. 18716.

United States Court of Appeals Fifth Circuit.

June 27, 1961.

Rehearing Denied July 28, 1961.

COPYRIGHT MATERIAL OMITTED

Chris Dixie, Houston, Tex., Plato E. Papps, Washington, D. C., Dixie & Schulman, Houston, Tex., for appellant.

Leroy Jeffers, Houston, Tex., Joseph W. Moore, Fouts, Moore, Williams & Caldwell, Houston, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., of counsel, for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

We deal here with the question of whether arbitration of a labor dispute pursuant to a collective bargaining agreement may comprehend an award of a money sum equivalent to back pay for time lost due to an unauthorized discharge. The District Court answered it in the negative. We disagree and reverse.

The case is here for the second time. On its former appearance, in there reversing the District Court, we held that a grievance within the terms of the arbitration clause was presented concerning the discharge of 15 employees for misconduct during the preceding strike. Lodge No. 12, etc. v. Cameron Iron Works, Inc., 5 Cir., 1958, 257 F.2d 467, certiorari denied, 358 U.S. 880, 79 S.Ct. 120, 3 L.Ed.2d 110. On remand the Court, without a jury, heard the case. The Employer's effort to establish that in the settlement of the strike the parties had expressly agreed not to arbitrate this controversy having failed,¹ there was nothing left for the Court to do save order arbitration. This it did. But in so doing, the Court expressly directed that the "* * * scope of arbitration, however, may extend only to the issue of reinstatement of the employees and may not include the award of back pay for time lost." 183 F.Supp. 148. The Court presumably had two things in mind. First, since the "* * * grievance sought to be arbitrated is the reinstatement of the employees * * *" such controversy "* * * may be settled by the board upon terms and conditions not necessarily involving the award of back pay." Second, and more important, it held that there "* * * is no clear authority in the contract for the award of back pay as a remedy in arbitration," and "such a remedy cannot be implied from a grant of authority to arbitrate * * *" any difference as prescribed in the collective bargaining agreement. The Judge cited and without a doubt relied heavily on our recent decision in Refinery Employees Union v. Continental Oil Co., 5 Cir., 1959, 268 F.2d 447, certiorari denied, Nov. 16, 1959, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152.

The collective bargaining agreement reflected the mutual purpose of settling "problems or grievances."² In contract terms which have been characterized as the standard clause, United Steel Workers v. American Manufacturing Co., 1960, 363 U.S. 564, at page 565, 80 S.Ct. 1343, 4 L.Ed.2d 1403, the parties bound themselves to arbitrate "* * * any difference * * * between the Company and any employee as to the meaning, application or interpretation of the provisions of" the agreement.³ Arbitration machinery comprehended the selection of arbitrators and their function,⁴ the selection of the disinterested member, and the powers of the Board of Arbitration so constituted.⁵

After the District Court announced its decision, the Supreme Court handed down the three Steel Workers opinions on June 20, 1960.⁶ The Union by timely motion for revision of findings, F.R. Civ.P. 59(e), 28 U.S.C.A., brought these to the attention of the Trial Court. Presumably the Court considered them of no substantial significance. We think their importance has been too much minimized and without attempting to cast it in terms of the impact of these cases upon our Continental Oil case, 268 F.2d 447, we think these intervening decisions point in a compelling way to a reversal.

The Employer insists in its brief that the 63 printed page contract with its minute details of rates of pay, hours of work, and conditions of employment is a "mundane and specific contract that seeks to spell out the details of the agreement." Consequently, it urges it "is no broad and `generalized code of industrial self-government'" nor an "ambiguous and amorphous charter to bring into being an undefined `common law of the shop.'" But this is really no answer.

Of course the terms of the contract, and frequently their very precision will be relevant if not controlling. But the Supreme Court did not find the unique importance of such contracts either in their brevity or ambiguity. The Court's approach is the one first articulated in Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, that § 301(a), 29 U.S.C.A. § 185(a) empowers federal courts to compel arbitration and that "* * * the policy to be applied in enforcing this type of arbitration was that reflected in our national labor laws." 363 U.S. 574, at pages 577-578, 80 S.Ct. 1347, at page 1350.⁷ The congressional policy on the settlement of grievances is reflected in § 203(d), 29 U.S.C.A. § 173 (d). And "That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play." 363 U.S. 564, at page 566, 80 S.Ct. 1343, at page 1346. Consequently the run of arbitration cases, e. g., Wilko v. Swan, 1953, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168, is not relevant. "In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife"; and "* * * arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself." 363 U.S. 574, at page 578, 80 S.Ct. 1347, at page 1351. That approach led to the express rejection of the thesis typified by a New York case⁸ that "If the meaning of the provision of the contract sought to be arbitrated is beyond dispute, there cannot be anything to arbitrate and the contract cannot be said to provide for arbitration." 363 U.S. 564, at page 567, 80 S.Ct. 1343, at page 1346. The Supreme Court categorically rejected this as "a principle that could only have a crippling effect on grievance arbitration." 363 U.S. 564, at pages 566-567, 80 S.Ct. 1343, at page 1346.

Of course such factors so broadly declared do not solve the problem automatically. The Courts still have a role. "The Congress, however, has by § 301 * * * assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." 363 U.S. 574, at page 582, 80 S.Ct. 1347, at page 1353. But in resolving this threshold legal question of the contract promise, courts are to be guided by the same overriding consideration. For the Court continues, "* * * the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. 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. Doubts should be resolved in favor of coverage." 363 U.S. 574, at pages 582-583, 80 S.Ct. 1347, at page 1353.

Viewed in this light several things are clear in the context of this record. At the outset is the nature of the grievance, that is the controversy over which there was a dispute. It covered two things. The first was the claim that each of the 15 men was wrongfully denied reinstatement and hence wrongfully discharged. The second aspect was the demand that each be reinstated "with all rights unimpaired and with pay for all time lost." This latter facet was an integral part of the controversy over the substantive rights accorded by the collective bargaining agreement. It was not a mere dispute over the nature or operation of the arbitration machinery or the power of the arbitrator. It was, therefore, a "difference * * * as to the meaning, application or interpretation of the provisions" of the contract, see note 3, supra.

The District Court apparently undertook to hold that the collective bargaining contract did not extend this sort of relief to one adjudicated by an arbiter to have been wrongfully discharged. But in searching the contract for "particular language * * * which will support the claim," 363 U.S. 564, at page 568, 80 S.Ct. 1343, at page 1346, or overcome the claim the Trial Court undertook to perform the function of the arbiter. Whether the contract does or does not give rise to an obligation on the part of the employer to make good to a wrongfully discharged employee back pay for the time lost is a question of contract interpretation. But that does not make it one for a court to decide. "The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator." 363 U.S. 564, at pages 567-568, 80 S.Ct. 1343, at page 1346.

This is all the more true when examined against the very broad language describing the powers of the Board of Arbitration. In sweeping language which scarcely could be made more comprehensive, the contract provides that "The terms and conditions of settlement shall be within the sole discretion of the Board and the decision of a majority of the Board shall be final and binding on the parties; * * *," see note 5, supra. The reference to the "settlement" is neither...