MARBLE PROD. CO. OF GA. v. LOCAL 155, UNITED STONE & ALL. PROD. W.

• Citation: 335 F.2d 468
• Decision Date: 03 August 1964
• Docket Number: No. 20644.,20644.
• Parties: MARBLE PRODUCTS COMPANY OF GEORGIA, Appellant. v. LOCAL 155, UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, AFL-CIO, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

335 F.2d 468 (1964)

MARBLE PRODUCTS COMPANY OF GEORGIA, Appellant. v. LOCAL 155, UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, AFL-CIO, Appellee.

No. 20644.

United States Court of Appeals Fifth Circuit.

August 3, 1964.

Alexander E. Wilson, Jr., Atlanta, Ga., for appellant.

J. R. Goldthwaite, Morgan C. Stanford, Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.

WISDOM, Circuit Judge.

The plaintiff Union seeks to enforce an arbitrator's award under the arbitration clause of a collective bargaining agreement. The defendant Company's principal contention is that the subject matter of the dispute was not arbitrable under the contract and, consequently, the arbitrator had no power to render the award. This issue turns on whether the refusal of certain employees to perform an assigned task, because of unsafe working conditions, constituted a violation of the no-strike clause prohibiting any "strike, work stoppage * * * or other interruption of production". The agreement makes non-arbitrable discipline based on an employee's violation of the no-strike clause. The district court upheld the arbitrator. We affirm.

I.

The facts are not in dispute. Marble Products Company produces marble products at a plant at Whitestone, Georgia. October 26, 1962, the Company foreman ordered nine employees to carry eighty 100-pound sacks of crushed rock from the Company's secondary mill to the primary mill. This order required the men to carry the sacks on their shoulders across a catwalk fourteen inches wide and a hundred and ten feet long which was thirty-eight feet above the ground. The catwalk sloped at an angle of eleven degrees. Alongside, a suspended ramp carried an unprotected moving belt for transporting the stone upward to the secondary mill. The angled catwalk ended in steep steps eight or ten feet high and six inches wide. The bottom step was missing. The catwalk contained a hole over which the men had to step, and the footing was uncertain because of rock chunks underfoot. At times, one employee would meet another employee going in the opposite direction on the narrow walk-way. When, on October 26, 1962, the foreman ordered the men to carry the marble down the walk, they told the foreman that they thought this work was too hard and unsafe. They said that it could be done equally well by bringing the chunks of stone down the overthrow conveyor belt or by using a tumbler (both methods had been used in the past), and that they were willing to do this work during their lunch hour. The foreman insisted that it be done immediately as he had directed; the alternative methods had proved unsatisfactory. Mosley, Vice-President of the Company, reaffirmed the foreman's orders. He made the point that the men had used the catwalk many times in the past and that no one had ever been hurt. When the workers persisted in refusing to do the task, Mosley read to the men Section 13 of the labor contract relating to strikes, work stoppages, or interruptions of work. The men indicated that they did not want to perform the dangerous task of carrying heavy sacks of marble on the catwalk. Forced to a decision, Mosley ordered the nine objectors to check out and receive their pay. Two other workers, sympathizers, left with the discharged men.

In recent contract negotiations Union representatives had never mentioned to the Company the alleged danger in the use of the catwalk. In fact, no complaints had been made before October 26, 1962, the day of the incident.

In due course the Union initiated grievance proceedings requesting that the Company reinstate the eleven employees with back pay¹ and, upon exhausting the grievance procedure, invoked arbitration in accordance with Section 13 of the collective bargaining agreement. The arbitrator found that the conduct of the eleven employees did not constitute a "strike, work stoppage * * * or interruption of production," and that therefore the Company's disciplinary action was arbitrable. He held, however, that the discharged employees were guilty of insubordination, even though they had "a reasonable basis for declaring the catwalk unsafe". He ordered the Company to reinstate the workers with the forfeiture of one month's wages. To enforce specific performance of the award the Union brought this suit under 29 U.S.C.A. § 185. The district court, agreeing with the arbitrator, granted summary judgment for the Union.

II.

Congress and the Supreme Court have blessed the broad role of labor arbitration in maintaining industrial peace.² To the end that arbitration agreements be interpreted liberally and sympathetically, courts are admonished that any doubt as to the arbitrability of a dispute over the meaning of a labor contract should be resolved in favor of coverage:

"To be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, 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." United Steelworkers v. Warrior & Gulf Navigation Co., 1960, 363 U.S. at 582-83, 80 S.Ct. at 1353, 4 L.Ed.2d 1409. (Emphasis added.)

Nevertheless, courts have a proper, though limited, role in determining whether the labor contract supports the arbitrator's jurisdiction³ to act. As the Court said in Warrior & Gulf:

"The Congress, however, has by § 301 of the Labor Management Relations Act, 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."

When the action is a post-arbitration suit to enforce an award, the court's role is not over when it finds that the arbitrator has jurisdiction to act. As the Supreme Court warned in United Steelworkers v. Enterprise Corp., 1960, 363 U.S. at 597, 80 S.Ct. at 1361, 4 L.Ed.2d 1424:

"* * * An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator\'s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award."

We turn therefore to the language of the contract. The collective bargaining agreement between the Union and the Company has the following arbitration clause:

"Arbitration: If at any time a controversy should arise between the Union and the Company regarding the true intent and meaning of any provision except wages, of this or any subsequent agreement or contract or a controversy as to the performance of any obligation hereinunder, which the parties are unable to dispose of by full and complete use of the grievance procedure set up by this agreement, the matter shall be arbitrated upon the written request of either party to this Agreement to the other party."

Section 13 of the agreement, crucial to this case, provides, in pertinent part, as follows:

"The Union, its officers, agents and members agree that during the life of this agreement they will not instigate, condone, sponsor, or participate in any strike, work stoppage, slow down, secondary boycott, or other interruption of production. Any employee engaging in such activity during the term of this agreement shall be subject to discharge or other discipline. Discipline undertaken in accordance with the provisions of this paragraph shall not be the subject of arbitration, but the question of whether or not the employee actually engaged in such activity shall be subject to arbitration." (Emphasis added.)

The Company contends that the language of this no-strike clause unequivocally excludes from arbitration disciplinary action based on a "work stoppage * * * or other interruption of production." Here, so the Company argues, the employees refused to perform a work assignment they had performed many times in the past. As a result, a work stoppage occurred interrupting production.

We observe, first, that the arbitration clause provides specifically for arbitration of any controversy "regarding the true intent and meaning of any provision" of the agreement. Unless the arbitrator's reading of the contract is so unreasonable as to be arbitrary or capricious, we should accept his reading.

The arbitrator concluded: "Under the conditions described above I cannot come to a conclusion that these men engaged in a strike,...