LODGE NO. 12, ETC. v. Cameron Iron Works, 17025.

• Decision Date: 11 August 1958
• Docket Number: No. 17025.,17025.
• Citation: 257 F.2d 467
• 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

257 F.2d 467 (1958)

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

No. 17025.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Rehearing Denied August 11, 1958.

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

Leroy Jeffers, Joseph W. Moore, Fouts, Amerman & Moore, Vinson, Elkins, Weems & Searls, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

The appellant and the appellee are parties to a collective bargaining contract within the purview of the National Labor Relations Act.¹ The contract was effective for a two-year period from June 1, 1956, through May 31, 1958, and included a renewal provision. Under the terms of the contract, the right to employ and discharge employees, while vested exclusively in the Company, is subject to certain limitations, one being that a discharge may constitute a "grievance." A "grievance procedure" is specified for any difference arising between the Company and any employee as to the meaning, application or interpretation of the contract; an unsettled grievance may be submitted to arbitration. Pertaining to arbitration, Article V, Section 2 of the contract states:

"The Board of Arbitration shall render a decision within fifteen (15) days from the date the hearing is completed. 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; provided, however, the Board shall have no authority to violate, contravene, disregard or supplement the terms of this agreement."

The contract contains a "wage reopening clause" which states that the question of wages can be reopened by either party once a year upon giving thirty days' written notice to the other, and if no agreement is reached within sixty days after the notice, any strike limitation on the Union terminates.

The appellant reopened the question of wages under the "wage reopening clause" and, after reaching no agreement, effected a strike on April 29, 1957. The strike ended on June 8, 1957, with a settlement of a three cent per hour wage increase. The settlement agreement was in the form of a letter from the Company accepted by the appellant. The last paragraph of this letter states:

"Strikers who are lawfully entitled to reinstatement shall be reinstated to their respective jobs as rapidly as an orderly and economic readjustment of plant operations will permit, and in any event in not more than thirty (30) days from the date the strike is discontinued. Reinstatement notices will be mailed to the last known address of striking employees. Employees who do not report for duty, or submit a valid reason for not reporting, within five (5) days after reinstatement notice is mailed shall forfeit any right to reinstatement. These provisions shall not in any way prejudice the right of the company to reduce the working force." (Emphasis supplied.)

Upon the termination of the strike, fifteen employees, members of appellant, were discharged or were refused reinstatement because of "strike misconduct."

Appellant demanded arbitration of the discharge of or refusal to reinstate the fifteen employees and, upon refusal by the Company, brought this action to compel arbitration under the contract, invoking the jurisdiction of the federal courts under section 301 of the Act.² The trial judge granted summary judgment for the Company under Rule 56, Federal Rules of Civil Procedure, 28 U. S.C.A.

The Company defends this action upon two grounds: first, that the arbitration provisions of the contract are in no way applicable to the matter of discharging or refusing to reinstate the fifteen employees released for misconduct during the strike; second, if the arbitration provisions are applicable, the matter of discharge or reinstatement is within the exclusive jurisdiction of the National Labor Relations Board which renders an arbitration agreement on this matter unenforceable. The trial court held the first defense good and declined to consider the second. It reasoned that the parties intended by the contract to submit grievances to arbitration only where the operations of the Company were normal; that the employees were not in the employ of the Company since the strike precluded normal operations; and that the language of the Settlement Agreement implied that the Company should unilaterally decide who was "law fully entitled to reinstatement." The pertinent portion of the trial judge's memorandum opinion is printed in the margin.³

Since we disagree with the district court's opinion that no arbitration would lie to the matter at bar, we must also decide the issue of pre-emption raised by the appellee.

I. Was the Dispute Arbitrable?

Initially, the appellant earnestly contends that the question of arbitrability should be determined by the arbitration board in this case, saying that the lower court should not have decided the issue of arbitrability in view of the contract provision that "any grievance" could be arbitrated. While there is much to say in favor of appellant's argument,⁴ the courts have, with practical uniformity, held the question of arbitrability to be an issue for the courts — that is, the courts decide if the particular grievance is arbitrable under the terms of the collective bargaining contract.⁵ This is true even where the contract specifies that any controversy relating to the meaning or interpretation or application of the contract is arbitrable.⁶ Perhaps, if the contract expresses that the arbitrators will decide arbitrability, the courts would refrain from a decision.⁷ We will not delve into the intricacies or the merits of either side of this problem.

The general policy considerations of promoting harmonious interplay and propitious relations between labor and management, which will achieve industrial peace, have been given their full weight in the interpretation of collective bargaining contracts. With this search for true tranquillity in the industrial world ever in mind, the courts have crystalized from the supersaturation of litigation since 1947 several "rules of construction" in the interpretation of collective bargaining contracts to arbitrate. We consider the general rule to be that a dispute between labor and management is arbitrable where the dispute is specifically contracted to be arbitrable or generally where the contract expresses a broad arbitration policy, i. e., a general arbitration clause;⁸ but controversies are not arbitrable where the controversy in question is specifically excluded, where because of a listing of many arbitrable incidences the instant controversy is impliedly excluded,⁹ and where the controversy or grievance concerns violation of a "no strike clause."¹⁰

In the case at bar, not only does the contract specifically state that grievances arising from discharges may be arbitrated but it also has the general provision that "any difference" arising "between the Company and any employee as to the meaning, application or interpretation of the provisions" of the contract may constitute a grievance and, if not settled, may be arbitrated. We cannot agree with the trial court that the parties contemplated the contract to cover only "normal operations free from strike," nor can we agree that the striking employees were not in the employ of the Company.¹¹ The contract implies a broader, even an inclusive, coverage. The preamble of the contract states:

"Article I — Preamble

"The intent and purpose of the parties hereto is that this agreement will promote, improve, and maintain industrial economic and harmonious relations between the Union and the Company and to set forth herein the basic agreement covering rates of pay, hours of work, and conditions of employment to be observed between the Company and its employees."

We cannot interpret the contract to say that grievances arising from a discharge of employees for strike misconduct, where the employees were striking under the terms of the contract, would be impliedly excluded from arbitration. Neither did the settlement memorandum impliedly exclude from arbitration any arbitrable matter in the contract. The question of which strikers are "lawfully entitled to reinstatement" must be considered an arbitrable matter rather than left to the unilateral determination of the Company in order to preserve the terms of the contract relating to seniority, retirement, etc., and to carry out its general intent and purpose.

II. Exclusiveness of Jurisdiction.

The second ground of defense presents the question of whether parties to a collective bargaining agreement may contract to submit matters involving unfair labor practices¹² to private arbitrators with such contract enforceable by the federal courts under section 301 of the Act, or whether all controversies concerning unfair labor practices are within the exclusive jurisdiction of the National Labor Relations Board which pre-empts the federal courts from acquiring jurisdiction over a contract violation which happens also to be an unfair labor practice. This question has not been raised previously in this Court, nor has it been decided by the Supreme Court.

The appellee asserts that, since the discharges were made because of union activity — protected or unprotected — which presents the question of unfair labor practice vel non,¹³ and since the exclusive jurisdiction of the Board pre-empts state courts and agencies from deciding issues involving such unfair labor practices,¹⁴ certainly the parties cannot by contract give to private arbitrators more jurisdiction than is afforded to state courts. However, the appellee overlooks the obvious distinction between contract provisions and matters committed exclusively to the Board. If an...