Tobacco Wkrs. Int. U., Local 317 v. Lorillard Corporation

• Decision Date: 16 September 1971
• Docket Number: No. 15343,15344.,15343
• Citation: 448 F.2d 949
• Parties: TOBACCO WORKERS INTERNATIONAL UNION, LOCAL 317, Appellant, v. LORILLARD CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

448 F.2d 949 (1971)

TOBACCO WORKERS INTERNATIONAL UNION, LOCAL 317, Appellant, v. LORILLARD CORPORATION, Appellee.

Nos. 15343, 15344.

United States Court of Appeals, Fourth Circuit.

Argued May 3, 1971.

Decided September 16, 1971.

COPYRIGHT MATERIAL OMITTED

Larry Thomas Black, Charlotte, N. C. (Robert G. Sanders, Charlotte, N. C., and James F. Carroll, Washington, D. C., on brief), for appellant.

Thornton H. Brooks, Greensboro, N. C. (C. Allen Foster and McLendon, Brim, Brooks, Pierce & Daniels, Greensboro, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.

CRAVEN, Circuit Judge:

Tobacco Workers International Union, AFL-CIO, Local 317 (hereinafter the Union) brought this action pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against the Lorillard Corporation (hereinafter the Company) in the District Court for the Middle District of North Carolina for specific performance of a collective bargaining agreement clause providing for arbitration of employee grievances. The District Court ordered arbitration of some of the grievances and refused to order arbitration of the rest.¹ Both the Company and the Union appeal from the portions of the District Court judgment adverse to them. We conclude that all the grievances are arbitrable, and affirm in part and reverse in part.

The collective bargaining agreement which applies to this suit was entered into by the Union and the Company on March 1, 1965, and was in effect from that date to March 1, 1968. The agreement provides a grievance procedure which can be instituted by any employee who believes "he or she has been unjustly dealt with."² Grievances which involve either disciplinary action claimed to have been imposed without just cause or application of the agreement's seniority provisions with respect to promotions, layoffs, and recalls may be submitted to arbitration at the request of the Union.³ The contract provides for departmental seniority. When a job vacancy occurs within a department, employees within the department who wish to fill the opening bid for it. The employee with the greatest seniority is given the job, provided that he or she is qualified to do the work.⁴ Like promotions, layoffs and recalls are made on a departmental basis. Employees are laid off in the inverse order of their seniority provided that the senior employees retained have the ability to do the work remaining in the department during the layoff. Recalls are made in the reverse order in which the employees are laid off.⁵

The bargaining agreement which was in effect prior to the March 1, 1965 agreement contained separate pay scales and separate job classifications for male and female employees. Apparently in response to the Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-15, the denomination of jobs as either male jobs or female jobs was eliminated from and a non-discrimination clause⁶ was added to the March 1, 1965 agreement. In spite of the change in contract language, the Company continued to consider only male employees for jobs reserved for males under the previous contract and only female employees for jobs previously reserved for females. Each of the seven grievances which make up the subject matter of this action claim that the Company's continuation of this policy denied them the right to do certain kinds of work being performed by employees with less seniority in violation of the agreement's seniority provisions regarding promotions, layoffs and recalls.

Four of the grievances were filed late in 1965. The first two, filed by Betty Mae Greenwale and Ruby A. Fields (hereinafter Fields I), claimed that the female grievants had bid on job vacancies that arose in their department, that they had greater seniority than the employee who was awarded the job, and that they were not considered for the vacancies because the jobs were limited to male employees. The next two grievances, filed by Ruby Stanley and James M. Talley, were filed in response to the Company's announcement of an impending layoff. Both grievances claimed that the grievants should not be included in the layoff because employees with less seniority who were performing jobs traditionally limited to employees of the opposite sex were not included in the layoff. The grievance filed by Ruby Stanley was signed by five additional female employees in the same department, Barbara Vaden, Fleeta Mae Ayers, Katherine Fuller, Jean A. Way and Della K. Hunter. The Company contends this was a single grievance of Ruby Stanley. The Union contends it was a multiple grievance.

The Company refused to grant the relief requested by each of the grievants and, at first, refused to submit any of the grievances to arbitration. Subsequently, however, the Company agreed to submit the Greenwale grievance to arbitration. On July 15, 1966, the arbitrator issued an opinion and award which determined that the subject matter of the grievance was within the agreement's arbitration clause and that the agreement required job vacancies to be filled on the basis of the seniority of the qualified employees bidding for it without regard to sex. The matter was remanded back to the parties to determine whether Betty Mae Greenwale had the necessary qualifications to do the job she had bid for.

After the arbitrator's decision, the Company decided to give Betty Mae Greenwale the job she had bid for. During the period of time that the Greenwale grievance was being arbitrated, a number of the Company's employees were on layoff. Apparently as a result of a need for an increase in work force that arose at about the same time as the arbitrator's decision, the Company recalled the employees who had been laid off on August 1, 1966. Concurrent with the recall, those employees who had filed grievances earlier were given the jobs, formerly reserved to employees of the opposite sex, that they had asked for.

Upon being recalled to work, a number of the female employees inquired as to whether they would be given retroactive pay for the period during which they had either been laid off or denied requested promotions. The Company responded in the negative. This prompted the filing of three more grievances. Ruby A. Fields filed a second grievance (hereinafter Fields II) referencing her earlier one and requesting retroactive pay. Jean A. Way filed a grievance as a representative of "the girls of the packing department" claiming their layoff was unjust and requesting back pay. Evelyn Gaines filed a similar grievance representing "the women of the making department." The Company refused the Union's request to consider these grievances on the ground that they were not filed within the time limits specified in the agreement.

The Company raises four reasons why they should not be compelled to arbitrate the grievances:

(1) the Union failed to process some of the grievances within the time limits specified in the contract (Talley, Fields II, Way, and Gaines);

(2) a number of the grievances were satisfactorily adjusted when the Company granted the grievants the jobs they had requested (Greenwale, Fields I, and Stanley);

(3) the Fields II grievance is not arbitrable because the contract does not specifically provide for retroactive pay where an employee is denied a requested promotion and the arbitrator is not allowed to "impose * * * an obligation not explicity sic provided for in the Agreement."

(4) the entire action is barred by the Union\'s laches.

The District Court held that the issues of laches and procedural timeliness were questions for the arbitrator to decide and not for the courts; that the Greenwale, Fields I, and Stanley grievances were satisfactorily adjusted by awarding the grievants the position they requested;⁷ that the Fields II grievance was not arbitrable because the contract provided for back pay only in cases of unjust layoff and recall and not in cases of refusal to promote; and that the contract requires that grievances be filed individually by each aggrieved employee and does not allow representative grievances. The net result was that the District Court directed arbitration of the Talley, Way and Gaines individual grievances and refused to compel arbitration of the others including the Way and Gaines grievances insofar as they attempted to grieve for employees other than themselves.

I. Procedural Questions

We think the District Court was clearly correct in deciding that the question of whether the grievances were timely filed was for the arbitrator. The Supreme Court resolved a split of authority that had existed among the circuits in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), concluding that procedural questions are for the arbitrator. Part of the rationale for this result was that in many cases the merits of the dispute and the question of grievance procedure will be intertwined "raising the same questions on the same facts." The Company urges upon us the negative inference of this rationale, i. e., where the merits and the procedural questions are not so intertwined, the procedural questions should be decided by the courts and not the arbitrator.

We do not think the "intertwining" reason advanced in John Wiley can be elevated to the negative principle urged upon us by the Company. The difficulty of separating procedural and substantive questions was not the only reason for the Supreme Court's conclusion that procedural questions should be decided by the arbitrator. The Court was also concerned about "the opportunities for deliberate delay and the possibility of well-intentioned, but no less serious delay created by separation of the `procedural' and `substantive' issues." 376 U.S. at 558, 84 S.Ct. at 919.⁸ The various circuits have invariably applied the John Wiley rule, without discussion of whether the procedural and substantive questions were independent of each other, in cases where the...