Vulcan-Cincinnati, Inc. v. UNITED STEELWORKERS OF AMER., 14269.

• Decision Date: 14 April 1961
• Docket Number: No. 14269.,14269.
• Citation: 289 F.2d 103
• Parties: VULCAN-CINCINNATI, INC., Plaintiff-Appellee, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

289 F.2d 103 (1961)

VULCAN-CINCINNATI, INC., Plaintiff-Appellee, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Defendant-Appellant.

No. 14269.

United States Court of Appeals Sixth Circuit.

April 14, 1961.

Robert I. Doggett, Cincinnati, Ohio, Walter F. Smith, Robert I. Doggett, Smith & Latimer, Cincinnati, Ohio, on brief, for appellant.

J. Mack Swigert, Cincinnati, Ohio, J. Mack Swigert, Robert G. Stachler, and Steer, Strauss & Adair, Paul W. Steer, Cincinnati, Ohio, on brief, for appellee.

Before MILLER, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Plaintiff-appellee brought suit in the District Court for the Southern District of Ohio against defendant-appellant, United Steelworkers of America, AFL-CIO, under Section 301 of the Taft-Hartley Act (29 U.S.C.A. § 185) to recover damages claimed to have been sustained as a result of a strike at plaintiff's plant at Woodlawn, Ohio. Defendant Union moved to dismiss the complaint, or, in the alternative, for a stay of proceedings pending arbitration. Defendant relies upon the United States Arbitration Act (Title 9 U.S.C. § 3) and the provisions of a collective bargaining agreement existing between plaintiff and the Union during the times involved. The district judge denied defendant's motions. Defendant appeals only from the order denying the stay.

The Union contends that it was entitled to a stay of proceedings pending arbitration, asserting that plaintiff's complaint involved a matter which, under the collective bargaining agreement, should have been submitted to arbitration. That agreement contained a no strike clause and a grievance procedure in the following language:

"Section 7 — Adjustment of Grievances

"A — Should differences arise between the Company and Union as to the meaning or application of the provisions of this Agreement, or should any local trouble of any kind arise in the plant, there shall be no lockouts, strikes, work stoppages or slowdowns engaged in by the parties hereto, but the matter shall be settled immediately in the following manner and order:

"1. between the aggrieved employee and/or member or members of the Grievance Committee and the Foreman of the department involved;

"2. between the aggrieved employee and/or a member or members of the Grievance Committee designated by the Union, and the Superintendent of the department;

"3. between the aggrieved employee and/or a member or members of the Grievance Committee, designated by the Union, and the Personnel Manager; before this step the subject matter of the grievance shall be reduced to writing, signed by the aggrieved employee and/or the Grievance Committee, and presented to the Personnel Manager;

"4. between representatives of the International Union and the representatives of the Executives of the Company;

"5. in the event that the matter shall not have been settled satisfactorily, it shall then be appealed to an impartial umpire to be appointed by mutual agreement of the parties hereto. If the parties cannot agree to an arbitrator the matter will be presented jointly to the American Arbitration Association. The expense and compensation incident to the services of the umpire shall be paid jointly by the Company and the Union. The decision of the umpire shall be final and binding upon the parties hereto.

"It is further agreed that notification of intent to appeal any grievance from step 3 to step 4 or from step 4 to step 5 of this procedure shall be given within thirty-one (31) calendar days of a decision at either of these steps, otherwise the grievance shall be considered settled on the basis of the decision made at the last step and shall not be subject to further appeal. If additional time beyond the thirty-one day limit is needed by either the Union or management, such time will be granted if requested by the side requiring such time. The aforementioned provisions would apply to all grievances excepting those in the cases of discharge or disciplinary layoffs as mentioned in Section 9."

Plaintiff's complaint alleged that on December 8, 1959, a strike and work stoppage occurred at its plant, which strike was caused, engaged in, permitted and supported by defendant and its officers, agents and members; it charged that such conduct was a violation of the no strike clause and resulted in damage to plaintiff.

It should be sufficient, in disposing of this appeal, to refer to this court's decision in International Union, United Automobile, Aircraft, etc. v. Benton Harbor Malleable Industries, 6 Cir., 1957, 242 F.2d 536, 538. The facts and legal questions involved in that case are so similar to the case before us that, if we are to follow it, we must affirm the district judge. In the Benton Harbor case, the collective bargaining agreement in Article III, paragraph 1, provided:

"1. Shall difference arise between the company and the Union as to the meaning and application of this agreement, or should any local trouble arise, an earnest effort shall be made to settle such differences, and it is agreed by the Union that there shall be no strike, slowdown or stoppage of work on the part of the Union or its members and there shall be no lockout on the part of the company during the term of this contract. The parties shall in all instances resort to the following steps of the grievance procedure."

While such language is not identical in every particular with the beginning paragraph of the Adjustment of Grievances section (Section 7) in the contract before us, its content is such that we may here consider it to be the same. The plaintiff industry in that case, as in the case at bar, charged that, in violation of the no strike clause of its contract with a Union, five work stoppages occurred which were caused, authorized and condoned by the Union. The defendant Union was sued for damages. It made the same motion as is involved here, namely, a motion to dismiss or, in the alternative to stay proceedings until arbitration of the matters involved had been held in accordance with the provisions of the United States Arbitration Act, 9 U.S.C. § 3. We there affirmed an order of the district court denying such motions. After reviewing the wording of the contract in the Benton Harbor case, Judge Miller held that the company's right to recover damages for violation of the no strike clause did not involve a grievance subject to arbitration. He said:

"The thing to be arbitrated is the `difference\' or `grievance\', not the right to strike or any claimed justification for the strike. There was no right to strike. The arbitration called for by this paragraph of the contract was to be used instead of a strike, not to determine whether the strike was justified after it had occurred. The right to strike was not arbitrable issue under this paragraph of the contract."

Defendant, however, urges that Benton Harbor should not be controlling here, because, first, it contends that the language of the adjustment of grievance provision in this case is distinguishable from that in the contract involved in the Benton Harbor case, and, second, that the standing of Benton Harbor as a controlling authority has been impaired by subsequent decisions of the United States Supreme Court, which we will discuss hereinafter.

In this case, after the agreement that there shall be no strikes, the contract provides, "but the matter shall be settled immediately in the following manner and order." (Then follow the outlined steps of the grievance procedure.) In the same position in the Benton Harbor case, the contract provides, "`The parties shall in all instances resort to the following steps of the grievance procedure.'" We find no substance to the claim that the first quoted language calls for arbitration of a claimed violation of the no strike clause, whereas we held that the other did not.

A fair reading of the adjustment of grievances clause before us demonstrates that the grievances therein considered are grievances of employees. After the introductory paragraph, Section 7 of the contract sets forth the steps which shall be employed in the adjustment of grievances. In each of the steps numbered one, two, three and four, the "aggrieved party" is in every instance either an employee or his representative. Before step three may be processed, the subject matter of the grievance "shall be reduced to writing, signed by the aggrieved employee and/or the grievance committee." No language in steps one, two or three has any reference to a grievance of the employer. Arbitration does not come into operation until step five, after steps one to four have been concluded. Step five provides that in the event the matter shall not have been settled, "it shall then be appealed to an impartial umpire." It would do violence to the clear language of this grievance procedure to hold that this contract intended that the company, as well as its employees and the Union, would have grievances which would be adjusted by such procedure.

The Union, however, claims that notwithstanding the language of the various grievance steps, we should read...