Palestine Tel. Co. v. Local U. 1506 of Int. Bro. of Elec. Wkrs., 24211.

• Decision Date: 21 July 1967
• Docket Number: No. 24211.,24211.
• Citation: 379 F.2d 234
• Parties: PALESTINE TELEPHONE COMPANY, Appellant, v. LOCAL UNION 1506 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 234 (1967)

PALESTINE TELEPHONE COMPANY, Appellant, v. LOCAL UNION 1506 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellee.

No. 24211.

United States Court of Appeals Fifth Circuit.

June 20, 1967.

Rehearing Denied July 21, 1967.

George E. Seay, Dallas, Tex., Malone, Seay & Gwinn, Dallas, Tex., of counsel, for appellant.

L. N. D. Wells, Jr., and Mullinax, Wells, Mauzy, Levy & Richards, Dallas, Tex., for appellee.

Before RIVES, WISDOM and GOLDBERG, Circuit Judges.

PER CURIAM:

This appeal by the Palestine Telephone Company is from an adverse judgment of the United States District Court for the Eastern District of Texas, ordering appellant to arbitrate under the terms of a collective bargaining agreement with appellee, Local Union 1506 of the International Brotherhod of Electrical Workers.

The judgment of the District Court will be affirmed on the well reasoned and pertinently documented opinion, copy of which is appended hereto, by the late Judge Joe W. Sheehy, our respected and beloved colleague who served with distinction as Chief Judge of the United States District Court for the Eastern District of Texas.

Affirmed.

APPENDIX.

The Plaintiff-Union has brought this action under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. Sec. 185, on behalf of certain of its members who are employees of the Defendant-Company, to compel arbitration of the question of whether the hiring of a new employee in preference to present employee applicants constituted a violation of the collective bargaining agreement under the circumstances in this case. The pertinent facts as found from the stipulations and evidence introduced at the trial of this cause are as hereinafter set forth.

Local Union 1506 of the International Brotherhood of Electrical Workers, hereinafter called the Union, and the Defendant, Palestine Telephone Company, hereinafter called the Company, executed a collective bargaining agreement dated May 22, 1964. In accordance with the requirements of Article VII of the Agreement that the Company post notices within the plant of the various job vacancies which occur, on or about May 11, 1965, the Company posted a notice on the bulletin board announcing a vacancy as "Cashier-Clerk in the Commercial Department at Palestine, Texas." The notice went on to state the qualifications and requirements of the job and the method for making application. Three female employees of the Company, who are also members of the Plaintiff-Union, working in the Traffic Department, within the week submitted written bids for the posted vacancy. Thereafter, each said applicant was interviewed by a representative of the Company, but none of these applicants was promoted or reassigned to fill this vacancy. Instead, the Company selected a new employee, that is, a person who had never previously worked for the Company, to fill the vacancy on June 28, 1965.

The three female employees bidding for the job did not contact their immediate supervisor nor file individual grievances in writing. However, an agent of the Local Union, Mr. Latham, protested that the Union applicants had received unfair treatment in a conversation with the Company's Vice President, Rucker, as early as June 24, 1965. After the new employee reported to work, additional oral conversations were had concerning the Union's objection to the treatment of its member applicants, and a lengthy series of oral discussions and written communications between Mr. Latham and Mr. Johnson, President of the Company, and other representatives of the Union and Management, were had. These discussions culminated in a demand by the Union that the matter be referred to a Board of Arbitration in accordance with the terms of the collective bargaining agreement. The Company responded that the alleged grievance was not an arbitrable matter under the terms of the agreement, and accordingly the Company would not be willing to agree to submit the question to a Board of Arbitration. Thereafter, on November 12, 1965, the Union initiated this action seeking specific enforcement of the arbitration provisions in the collective bargaining agreement and that the Defendant-Company be required to arbitrate the alleged grievance.

Whether a particular controversy under a collective bargaining agreement is subject to arbitration is a matter to be determined by the Court on the basis of the contract. The Supreme Court has discussed at length the Court's role in interpreting arbitration agreements:

"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. Yet, 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 Steel Workers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed. 2d 1409 (1960).

A portion of the difficulty in this case lies in the fact that there is some confusion between the parties and in the pleadings as to the precise nature of the grievance which the Union seeks to arbitrate. In the original Complaint, the Union alleged "the hiring of a new employee rather than the present employees who had bid for the job vacancy constituted a discrimination against present employees covered by the contract * * *" which was in violation of Arts. VII and VIII of the contract. In the Union's trial brief, it is stated that "the preference of outsiders while failing to consider for promotion present employees is clearly a `grievance' within the broad definition specified in this contract."

The Company, on the other hand, steadfastly takes the position that it should not be compelled to arbitrate because the "alleged grievance involved the hiring of a new employee, which is a right resting solely and exclusively in the Company with no obligation to arbitrate the Company's decision", and relies on Article VIII, Sec. 2 to substantiate its position. On page 2 of its reply brief, the Plaintiff-Union answers "What is here in issue is not employer's right to hire * * * What is in issue is employer's failure to consider present employees for promotion."

In the Court's view, there are two distinct issues involved in this controversy under the present state of the pleadings, and the rights and obligations of the parties are not identical as to each aspect.

The first of the two prongs in the Union's complaint is directed toward the apparent issue of whether the Company complied with Art. VII, Sec. 1 of the Agreement in that it failed to give proper consideration to the present employees' applications for promotion. The second prong of the Union's complaint is directed toward Management's substantive decision of the merits of these applications, and poses the issue of whether the Company's action in failing to promote or reassign the employee applicants was supported by "just and lawful cause," as required by Art. VIII, Sec. 2. As has been pointed out in numerous decisions, the scope of arbitrability is a matter to be determined from the language of the collective bargaining agreement. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed. 2d 898 (1964); Atkinson v. Sinclair Refining Company, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); United Steel Workers v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Aircraft Corporation v. International Association of Machinists, 5 Cir., 360 F.2d 150 (1966). The pertinent provisions of the contract here in dispute are as follows:

Under the provisions of Sec. 3 of Art. 1, in order to be a proper subject of arbitration proceedings, a dispute must fit within the definition of a "grievance" and first have been prosecuted faithfully and timely through the procedure set out for the negotiation and settlement of disputes between Management and employees or the Union. A "grievance" is defined in this langauge:

"A grievance is defined as and limited to a complaint filed by an employee or employees or the Local Union alleging failure of the Company to comply with or carry out some provision or provisions of the Agreement and must not be based on any alleged understanding, practice or other matter outside the scope of this Agreement."

Thus, it is evident from this language, and the Court so finds, that it was contemplated by the parties to this Agreement that the grievance procedures set forth up to and including arbitration, could only be invoked by either an employee or employees, or the Union by filing a complaint alleging the failure of the Company to comply with the provisions of the contract.

Art. VII, Sec. 1, provides in pertinent part, "The Company will consider all employees in making the assignments, promotions and demotions, and when two (2) or more employees are under consideration for promotion, and the respective ability and personal fitness are substantially equal in the judgment of the Company, the person with the greater seniority will...