West Coast Tel. Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs.

• Decision Date: 23 September 1970
• Docket Number: No. 23054.,23054.
• Citation: 431 F.2d 1219
• Parties: WEST COAST TELEPHONE COMPANY, a corporation, Appellee, v. LOCAL UNION NO. 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, an unincorporated association, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

431 F.2d 1219 (1970)

WEST COAST TELEPHONE COMPANY, a corporation, Appellee, v. LOCAL UNION NO. 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, an unincorporated association, Appellant.

No. 23054.

United States Court of Appeals, Ninth Circuit.

September 23, 1970.

John E. Rinehart, Jr. (argued), Hugh Hafer of Bassett, Donaldson & Hafer, Seattle, Wash., for appellant.

James H. Clarke (argued), Lewis K. Scott and John C. Wright, Jr., of McColloch, Dezendorf, Spears & Lubersky, Portland, Or., Burton C. Waldo, of Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Seattle, Wash., for appellee.

Before HAMLEY and TRASK, Circuit Judges, and TAYLOR, District Judge.^*

HAMLEY, Circuit Judge:

West Coast Telephone Company (West Coast) brought this action in the district court to reform a collective bargaining agreement between the company and Local Union 77, International Brotherhood of Electrical Workers AFL-CIO (Union).¹ District court jurisdiction was asserted under section 301 (a) of the Labor-Management Relations Act (Act), 29 U.S.C. § 185(a). After a trial the court entered a judgment reforming the contract and the Union appeals. We affirm.

During the course of negotiating the contract the parties agreed upon new wage schedules for employees in the clerical and traffic departments of the company. Written schedules intended to manifest this agreement were included in the written contract. After the contract became effective some of the affected employees claimed that West Coast was paying less than was called for under the wage schedules. This led Union officials to file a grievance with West Coast and to meet with company representatives in an attempt to settle the question.

No settlement was agreed upon because West Coast claimed that the written wage schedules did not accurately reflect the agreement reached during the negotiations. The Union then requested that the dispute be submitted to arbitration pursuant to the arbitration clause of the contract. The company refused and, instead, filed this suit in the district court seeking reformation of the contract.²

The Union argues that the district court erred in denying the Union's motion to submit the dispute to arbitration.

The Supreme Court has cautioned that attempts to persuade a court to become entangled in the construction of the substantive provisions of a labor contract, through the back door of interpreting the arbitration clause, should be viewed with suspicion. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). As the Supreme Court said in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 569, 80 S.Ct. 1343, 1347, 4 L.Ed.2d 1403 (1960):

"When the judiciary undertakes to determine the merits of a grievance under the guise of interpreting the grievance procedure of collective bargaining agreements, it usurps a function which under that regime is entrusted to the arbitration tribunal."

Nevertheless, arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit. Where the question presented is whether specified issues are arbitrable under the terms of a particular arbitration clause, it is to be answered by the court. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964).

The test to be applied by the courts in determining arbitrability was stated by the Supreme Court in United Steel-workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960):

"An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."

The company concedes that the Union is correctly construing the wage schedules as set out in the written contract.³ It contends only that those written schedules do not accurately reflect the agreement reached during the bargaining negotiations. The relief the company seeks is not an adjudication that the written wage schedules mean something different than the Union contends. What it wants is a decree reforming the written wage scales to accord with the company's view as to the prior negotiated agreement.

Thus the company seeks a change in the terms of the written agreement. It can be said with positive assurance that such an issue is not arbitrable under the agreement in question. The arbitration clause of the contract expressly provides that the arbitrator "shall have no power to destroy, change, add to or delete from its terms."⁴

The district court correctly determined that the issues were not arbitrable and that the court should proceed to a consideration of the reformation issues.

The Union does not contend that the district court erred in finding that the written wage schedules did not accurately reflect the agreement of the parties. Nor does it challenge the reformed wage...