Southwestern Bell Tel. Co. v. COMMUNICATIONS WKRS. OF AM.

• Decision Date: 01 February 1972
• Docket Number: No. 71-1606.,71-1606.
• Citation: 454 F.2d 1333
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, and its Local 6222, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 1333 (1971)

SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, and its Local 6222, Defendants-Appellees.

No. 71-1606.

United States Court of Appeals, Fifth Circuit.

November 22, 1971.

As Modified on Denial of Rehearing and Rehearing February 1, 1972.

James M. Shatto, Joseph R. Riley, Leroy Jeffers, J. M. Hopper, Charles L. Berry, Houston, Tex., for appellant Southwestern Bell Telephone Co.; Vinson, Elkins, Searls & Smith, Houston, Tex., of counsel.

William N. Wheat, Houston, Tex., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge and INGRAHAM and RONEY, Circuit Judes.

As Modified on Denial of Rehearing and Rehearing En Banc February 1, 1972.

INGRAHAM, Circuit Judge:

This is an interlocutory appeal from a denial of an injunction. Appellant Southwestern Bell Telephone Company (the company) has brought suit against the Communications Workers of America and its Local 6222 (the union) under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, for breach of the collective bargaining agreement and to enjoin the union's striking of one of the company's construction sites. The dispute centers over the proposed staff structure for the strikebound Houston directory assistance center project. The company had proposed to allow two part-time employees working back to back to operate a full shift which had been work available to full-time employees based on their seniority. Moreover, the company proposed a separate seniority schedule for these part-time employees.

Responding to the staff plan, the union filed an unfair labor practice complaint with the National Labor Relations Board, grievances under the contract grievance procedure, and additionally struck the site of the facility, halting completion of the project.

Since the time this case was submitted on appeal, the collective agreement in effect at the origin of the dispute has been superseded by a new agreement which substantially carries forward the terms of its predecessor. The union asserts that this appeal is now moot as a consequence of the new agreement and its removal of pickets at the Houston project for a brief period. We disagree. The test of mootness in a case asking for injunctive relief is whether the injury is continuing or is likely to be repeated. Douds v. International Longshoremen's Association, 242 F.2d 808 (2nd Cir., 1957); Green v. Bangor Building Trades Council, AFL-CIO, 165 F.Supp. 902 (D.Me., 1958). The dispute at issue in this case has not been resolved, nor have the pickets left the site. It is a live controversy and an appropriate case for our continued appellate consideration, cf. Douds, supra. Whether the union has excluded this dispute from the coverage of the no-strike and arbitration clauses in the past and whether the union may subsequently exclude the dispute from the ambit of those clauses are two distinct questions. We are presented with a record of only the first. In considering whether an issue has been removed from the coverage of such clauses, this court has previously held that exclusion from coverage must be specifically articulated. The district court concluded that the disputes here in question were not covered by the contract's arbitration and no-strike clauses. However, for reasons stated infra, we disagree with the method in which the court reached that determination.

Turning to the merits of the company's appeal, the district court denied its application for an injunction on the grounds that the proposed staff structure was a prospective modification or amendment to the agreement beyond the scope of the contract arbitration clause and was unwarranted on basic equitable considerations.¹

In Boys Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 237, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that a district court may, when equity requires, enjoin a strike to effectuate a no-strike arbitration clause to which the parties have voluntarily agreed. The Court stated:

"Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief — principles that we now adopt:

"`A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity — whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.\' 370 U.S., at 228, 82 S.Ct., at 1346. (Emphasis in original.)"

Boys Market presented the Supreme Court with a case in which there was no dispute that the grievance in question was subject to arbitration under the contract. In the present case, however, there is a dispute. In such a case it is the district court's duty to first examine the collective agreement and inquire whether the parties have agreed to arbitration and whether the parties have agreed to arbitrate the specific issue. International Association of Heat & Frost Insulation & Asbestos Workers v. Leona Lee Corporation, 434 F.2d 192 (5th Cir., 1970). The trial judge to whom an application for injunction is made has no authority to decide the substance of the question for arbitration. Rather he must only decide whether or not the parties have bound themselves to arbitrate that subject matter. Lodge No. 12, Etc. v. Cameron Iron Works, Inc., 292 F.2d 112 (5th Cir., 1961); Communications Workers of America v. Southwestern Bell Telephone Co., 415 F.2d 35, 38 (5th Cir., 1969). Since Lincoln Mills² it has become increasingly clear that arbitration is the central institution for the administration of the collective bargaining contract. In order to effectuate this policy, it is necessary that a uniform standard of arbitrability be applied, regardless of whether the suit asks for the injunction of a strike, Boys Market, or the specific performance of an arbitration clause. Communications Workers of America v. Southwestern Bell, supra. That test is the same as was stated in Cameron, supra, and in Southwestern Bell, supra, and has been called one of "arguable arbitrability." Our examination is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract and which is "arguably arbitrable." See also Oil, Chemical & Atomic Workers International Union v. Southern Union Gas Co., 379 F.2d 774 (5th Cir., 1967); Local No. 787 v. Collins Radio Co., 317 F.2d 214 (5th Cir., 1963). Applying this standard of "arguable arbitrability" to the contract at issue, it is plain that the union's position and the district court finding that the dispute was not within the scope of the contract's arbitration clause (because it was a prospective modification of the contract) cannot stand. Whether or not the company's proposal is a prospective modification of the contract, the use of part-time employees with their own seniority schedule requires consideration of the application of the collective agreement's seniority clause.³ As such, it is a claim which on its face is governed by the contract and is arguably arbitrable. United Steel Workers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). As the National Labor Relations Board recognized in its recent opinion abstaining...