United Aircraft Corp. v. LODGE 971 OF INTERNAT'L ASS'N OF MACH., 22450.

• Decision Date: 10 May 1966
• Docket Number: No. 22450.,22450.
• Citation: 360 F.2d 150
• Parties: UNITED AIRCRAFT CORPORATION, Appellant, v. LODGE 971 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 150 (1966)

UNITED AIRCRAFT CORPORATION, Appellant, v. LODGE 971 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS, Appellee.

No. 22450.

United States Court of Appeals Fifth Circuit.

May 10, 1966.

Joseph C. Wells, Winthrop A. Johns, Washington, D. C., John M. Farrell, Palm Beach, Fla., Reilly & Wells, Washington, D. C., Burns, Middleston, Rogers & Farrell, Palm Beach, Fla., of counsel, for appellant.

Plato Papps, Washington, D. C., Jos. P. Manners, Miami, Fla., George Christensen, Washington, D. C., Manners & Amoon, Miami, Fla., for appellee.

Before JONES and GEWIN, Circuit Judges, and HUNTER, District Judge.

JONES, Circuit Judge:

Lodge 971 of the International Association of Machinists, the appellee, herein called the union, and United Aircraft Corporation, the appellant, herein called the company, entered into a labor-management agreement on July 16, 1962. The union brought an action against the company seeking a mandatory injunction to require the company to arbitrate a grievance, with jurisdiction asserted under Section 301 of the Labor Management Relations Act. 29 U.S.C.A. § 185. By the complaint the union sought to compel arbitration of a grievance submitted by and on behalf of Joseph Everett. To the complaint was annexed a copy of the grievance form which stated the grievance to be that "The company violated the agreement when I was reduced from Labor Grade 3 to Labor Grade 5." Also annexed to the complaint is a copy of the agreement which provides, among other things, for the submission to arbitration of a number of specifically enumerated classes of grievances. By the agreement, in Subsections (c)¹ and (e)² of Section 4 of Article V of the agreement, limitations were placed upon the matters subject to compulsory arbitration. In addition to the matters set forth in Subsections (c) and (e), supra, the agreement expressly excluded from arbitration "The right to determine whether transfers, promotions or demotions are to be made." The company filed a motion to dismiss and an answer. Each of the parties moved for a summary judgment. The motion of the company was denied. The motion of the union was granted. The cause is before us on the company's appeal from a judgment directing arbitration.

The word "demotion", as it is used with respect to employment, means a reduction to a lower rank or grade. Reed v. City Council of City of Roseville, 60 Cal.App.2d 628, 141 P.2d 459; McCarthy v. Steinkellner, 223 Wis. 605, 270 N.W. 551, 271 N.W. 374. Thus the grievance asserted — the reduction in grade — is of a demotion which the agreement expressly excludes from compulsory arbitration.

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. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed. 898; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; United Steelworkers, etc. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; Refinery Employees Union of Lake Charles Area v. Continental Oil...