Trailways of New England, Inc. v. AMALGAMATED ASS'N, ETC., 6342.

• Decision Date: 13 April 1965
• Docket Number: No. 6342.,6342.
• Citation: 343 F.2d 815
• Parties: TRAILWAYS OF NEW ENGLAND, INC., Appellant, v. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, DIVISION 1318, Appellee.
• Court: U.S. Court of Appeals — First Circuit

343 F.2d 815 (1965)

TRAILWAYS OF NEW ENGLAND, INC., Appellant, v. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, DIVISION 1318, Appellee.

No. 6342.

United States Court of Appeals First Circuit.

April 13, 1965.

Betty J. Southard, Washington, D. C., with whom Edward I. Masterman, Paul J. Redmond, Boston, Mass., Richard R. Paradise, Washington, D. C., Masterman & Redmond, Boston, Mass., and Roberts & McInnis, Washington, D. C., were on the brief, for appellant.

Earle W. Putnam, Washington, D. C., with whom Bernard Cushman, Washington, D. C., Arthur J. Flamm, and Segal & Flamm, Boston, Mass., were on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Senior Circuit Judge (by designation).

This is an appeal from a summary judgment of the United States District Court for the District of Massachusetts entered May 13, 1964, ordering the appellant company to arbitrate certain grievances relating to the suspension of one of its drivers and to the discharge of other employees.

The company is engaged in the interstate transportation of passengers by motor bus between various points in Maine, New Hampshire, Massachusetts, Connecticut and New York. A collective bargaining agreement existed between it and the union effective from April 23, 1961 to February 4, 1964. By Article XXI it provided for the settling of grievances as follows:

"Section 7. All grievances arising hereunder, including discharge, disciplinary action over the interpretation and application of the Agreement shall be disposed of in the following manner: * * *."

Sub-sections a, b, c, and d set forth the procedure for handling grievances and for arbitration in the event of failure of the grievance procedures. Section 8 provided procedures for company grievances. The contract did not contain a no-strike clause.

In the period between August and December of 1963 differences arose between the company and the union over whether the bus operators — members of the union — were required to carry standing passengers. Finally, on December 29, 1963, one of the operators, Paine, refused to obey a company order to carry standees. The company thereupon removed him from service and on December 31, 1963, suspended him for thirty days for insubordination. The union filed a grievance protesting the suspension on January 7, 1964, but it was denied by the company on its merits. In protest against Paine's suspension, all the other union drivers refused to pull their runs. After warnings that it considered the strike illegal and that all participating employees were subject to discharge, and after demands that the union follow the grievance procedure of the contract, the company discharged approximately 190 operators and terminal employees for participating in the strike. Most of the discharges were confirmed by letter on January 6, 1964, although some of the employees were discharged on January 8. On January 14 the company notified the union that it was rescinding the contract as of December 31, 1963 because of the strike. It also refused to process grievances filed on January 14 in behalf of the discharged employees. The union then brought this action pursuant to section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185, to compel arbitration.

During these same months the company and the union were preparing to open negotiations over a new collective bargaining agreement. On November 21, 1963, the union gave the company notice of its desire to make certain changes in working conditions and pay practices in the contract which was to expire February 4, 1964, and of its desire to resolve all grievances. The company responded on November 27 by giving the union notice of its desire to cancel the agreement in its entirety and of its hope to prepare a new proposed agreement. It also suggested that any outstanding grievances be settled in accordance with Article XV, Section 2, of the collective bargaining agreement, which provided that "all unsettled claims will be paid, denied or dropped before expiration date of present contract."

On December 10 the union sent a letter to the company's vice-president Powell, alluding to the difference of opinion over the carrying of standees. This letter was put aside to be discussed at a January meeting set to resolve all grievances and to allow the union to present its changes in the contract. It seems to be agreed by the parties that these circumstances brought into play the provisions of section 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d).¹ The union was thus obligated to continue the terms and conditions of the existing contract in full force and effect, without resorting to strike or lockout during a sixty-day period commencing November 21, 1963. The discharges sought by the union to be arbitrated arose from a strike engaged in during that period.

The company's first major contention is that it was justified in rescinding the collective bargaining agreement and is no longer under any duty to arbitrate because the strike over Paine's suspension was a material breach of the agreement, in that the strike violated the provision for arbitration, which, it contends, was an implied no-strike clause. This contention must fail in the light of Local Union No. 721 United Packing-house etc., Workers v. Needham, 376 U.S. 247, 84 S.Ct. 773, 11 L.Ed. 680 (1964). In that case the Supreme Court compelled arbitration where the union struck in violation of an express no-strike clause. There, too, the company announced that it considered the collective bargaining agreement "repudiated and terminated" and that it would not have further dealings with the union. The company here has produced evidence to show that the parties considered the arbitration provision to be an implied no-strike clause and that it truly was the "quid pro quo" of the arbitration agreement. We do not see how that can alter the result in view of the Supreme Court's clear rejection of the same argument in Needham, 376 U.S. at 251, 84 S.Ct. 773. Here, as in Needham, no exception was made in the arbitration provision for the arbitrability of discharges arising out of strikes. In addition to that the contract here lacked the no-strike clause contained in the Needham agreement. See also Drake Bakeries v. Local 50, Am. Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed. 2d 474 (1962).

The company further contends that the strike in protest of Paine's suspension was a violation of section 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d), that the strikers thereby lost their status as employees, and that their is, therefore, no duty to arbitrate their discharge. In support of this contention the company attempts to tie in the differences over the carrying of standees with the proposed negotiations for a new agreement. It then argues that the strike protesting Paine's suspension was a strike to terminate or modify the existing contract, violative of section 8(d). See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956). It is by no means clear from the affidavits presented by the parties that the question of standees was so related to negotiations for a new contract. In view of our resolution of the issue, however, that matter is of no importance.

The question whether a given set of facts constitutes an unfair labor practice under section 8 is in the first instance for the National Labor Relations Board to decide. San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959...