IBEW v. WNEV-TV Arbitration Dispute
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Scribd Government DocsIBEW v. WNEV-TV Arbitration Dispute
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Scribd Government Docs778 F.
2d 46
120 L.R.R.M. (BNA) 3469, 54 USLW 2355,
103 Lab.Cas. P 11,696
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 1228,
AFL-CIO, Plaintiff, Appellant,
v.
WNEV-TV, NEW ENGLAND TELEVISION CORP.,
Defendant, Appellee.
No. 85-1347.
United States Court of Appeals,
First Circuit.
Argued Sept. 12, 1985.
Decided Nov. 27, 1985.
Joseph G. Sandulli with whom Sandulli & Grace, Boston, Mass., was on
brief for plaintiff, appellant.
Laurence S. Fordham and John D. Leubsdorf with whom Kilburn,
Fordham & Starrett, Boston, Mass., were on brief for defendant, appellee.
Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.
TORRUELLA, Circuit Judge.
This case is before us on appeal from a final order denying a petition to compel
arbitration.
* Appellant, International Brotherhood of Electrical Workers, Local 1228,
AFL-CIO (IBEW), a labor organization that represents certain technicians
employed by appellee, WNEV-TV, New England Television Corporation
(WNEV-TV), brought an action against WNEV-TV pursuant to Sec. 301(a) of
the Labor Management Relations Act, 29 U.S.C. Sec. 141 et seq., seeking to
compel arbitration of a dispute that IBEW alleged arose under the terms of a
collective bargaining agreement in effect between IBEW and WNEV-TV. The
specific grievance that IBEW sought to arbitrate was "whether [WNEV-TV]
violated [the] collective bargaining agreement by eliminating an employee
lounge."
3
The lounge in question, referred to in shop parlance as the "Technicians'
Lounge," had been in existence and was used by the employees represented by
IBEW from April 1982, when WNEV-TV began using its facilities, until its
unilateral elimination by WNEV-TV in mid-April 1984. Prior to the removal of
the lounge, IBEW tried to bring the issue before the grievance committee, first
alleging past practice1 as basis for its position, and later pointing to various
provisions in the collective bargaining agreement to support its allegations.
WNEV-TV countered that the maintenance of the lounge was not required by
any provision of the contract and thus the dispute could not be grieved. Upon
the refusal to submit the question to arbitration by WNEV-TV, IBEW brought
the present suit to compel said procedure. The district court framed the issue as
"whether the Agreement requires maintenance of the Technician's Lounge." It
proceeded to discuss the various contractual provisions that IBEW alleged were
supportive of this requirement2 and to conclude that, although "plaintiff's
analysis appears to create an issue sufficiently substantial to require submission
to an arbitrator, the contract provisions themselves do not support plaintiff's
interpretation." It further concluded that "the cited articles do not create a duty
to maintain a technician's lounge, even under the most liberal interpretation."
The court granted summary judgment in favor of WNEV-TV. Because we
conclude that the district court has over-extended itself in considering and
deciding the merits of the underlying dispute, a function that is outside its
powers in Sec. 301 suits to compel arbitration, we reverse.
In the now-famous Steelworkers Triology cases the Court in Steelworkers v.
American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d
1403 (1960), set out the parameters of a court's role in deciding issues of
arbitrability:
5 function of the court is very limited when the parties have agreed to submit all
The
questions of contract interpretation to the arbitrator. It is confined to ascertaining
whether the party seeking arbitration is making a claim which on its face is
governed by the contract. Whether the moving party is right or wrong is a question
of contract interpretation for the arbitrator....
6
The courts, therefore, have no business weighing the merits of the grievance,
considering whether there is equity in a particular claim, or determining
whether there is particular language in the written instrument which will
support the claim. The agreement is to submit all grievances to arbitration, not
merely those which the court will deem meritorious. The processing of even
frivolous claims may have therapeutic values of which those who are not a part
of the plant environment may be quite unaware.6
7
(Emphasis supplied. Footnote 5 omitted).
In footnote 6, the court made reference to Archibald Cox's article, Current
Problems in the Law of Grievance Arbitration, 30 Rocky Mt.L.Rev. 247, 261
(1958) in which he wrote:
9 typical arbitration clause is written in words which cover, without limitation, all
The
disputes concerning the interpretation or application of a collective bargaining
agreement. Its words do not restrict its scope to meritorious disputes or two-sided
disputes, still less are they limited to disputes which a judge will consider two-sided.
Frivolous cases are often taken, and are expected to be taken, to arbitration. What
one man considers frivolous another may find meritorious, and it is common
knowledge in industrial relations circles that grievance arbitration often serves as a
safety valve for troublesome complaints. Under these circumstances it seems proper
to read the typical arbitration clause as a promise to arbitrate every claim,
meritorious or frivolous, which the complainant bases upon the contract. The
objection that equity will not order a party to do a useless act is outweighed by the
cathartic value of arbitrating even a frivolous grievance and by the dangers of
excessive judicial intervention.
10
The arbitration clause here in question is precisely the type of clause referred to
by Justice Douglas in American Mfg. and by Archibald Cox in his article.
Articles 3.01 and 3.02 of the collective bargaining agreement provide for a
grievance and arbitration procedure to resolve:
11 complaints, disputes or questions as to the interpretation, application or
All
performance of this agreement which are not adjusted between the Employer and the
representative of the Union....
12
(Emphasis supplied). Once the district court made the threshold finding that
plaintiff's claims "appear[ed] to create an issue sufficiently substantial to
require submission to an arbitrator," its judicial function was at an end. When it
proceeded to find that the "contract provisions themselves [did] not support
plaintiff's interpretation [and that] the cited articles [did] not create a duty to
maintain a technician's lounge," it entered the proscribed area of "determining
whether there is particular language in the written instrument which will
support the claim." American Mfg. Co., supra, 363 U.S. at 568, 80 S.Ct. at
1346. The issue as stated by the district court should not have been "whether
the Agreement requires maintenance of the Technician's Lounge" but rather
whether the claim is a complaint, dispute or question as to the interpretation,
application or performance of the collective bargaining contract. That it
unquestionably is, irrespective of what the outcome of the merits of IBEW's
claim may be. Our ruling today, of course, expresses no views as to how the
issues should be decided by the arbitrator. We merely resolve that, in keeping
with a clearly established national labor policy favoring the arbitration of
disputes, "unless it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers the asserted dispute
[,d]oubts should be resolved in favor of coverage," United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct.
1347, 1353, 4 L.Ed.2d 1409 (1960); Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, --- U.S. ----, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985). Any
doubts in this case, even if we were to conclude that IBEW's claims are
frivolous, require that the matter be decided by an arbitrator in the first
instance. See Mobil Oil v. Local 8-766 Oil Chemical and Atomic Workers, 600
F.2d 322 (1st Cir.1979); Camden Indus. Co. v. Carpenters Local 1688, 353
F.2d 178, 180 (1st Cir.1965). This result is in keeping with the "strong
presumption favoring arbitrability." Nolde Bros. v. Bakery & Confectionery
Workers, 430 U.S. 243, 254, 97 S.Ct. 1067, 1073, 51 L.Ed.2d 300 (1977). See
also generally Smith & Jones, The Impact of the Emerging Federal Law of
Grievance Arbitration on Judges, Arbitrators, and Parties, 52 Va.L.Rev. 831
(1966); Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The
Emerging Federal Law, 63 Mich.L.Rev. 751 (1965); McDermott, Arbitrability:
The Courts versus the Arbitrator, 23 Arb.J. 18 (1968); Note, Judicial Review of
Labor Arbitration Awards After the Triology, 53 Cornell L.Rev. 136 (1967).
13
The company says that there are no doubts in this case because the arbitration
clause permits arbitration only of grievable matters, and this one was not
grievable because the grievance procedure required written specification of "the
sections of the contract claimed to have been violated," and there were no
sections cited, but only "past practice." It has been held that a contract may be
found to incorporate past practice even though not mentioned. See Warrior &
Gulf, ante, 363 U.S. at 581-82, 80 S.Ct. at 1352-53 ("industrial common law-the practices of the industry and the shop--is equally a part of the collective
bargaining agreement although not expressed in it."); Edward Hines Lumber
Co. v. Lumber & Sawmill Workers Local No. 2588, 764 F.2d 631 (9th
Cir.1985); Local No. 702, IBEW v. Central Ill. Pub. Serv. Co., 324 F.2d 920
(7th Cir.1963). In Warrior & Gulf the Court further said, 363 U.S. at 585, 80
S.Ct. at 1354, "In the absence of any express provision excluding a particular
grievance from arbitration ... only the most forceful evidence of a purpose to
exclude the claim can prevail." Under this test we will not hold that the quoted
provision, as matter of law, excluded past practice from grievability.
14
In this case this view is reinforced by the all-inclusive language of the no strike
clause. In Section 5.18 of the collective bargaining agreement IBEW has bound
itself not to engage in any "work actions, strikes (whether sympathetic or
otherwise), picketing, boycotting, or any other interference" against WNEVTV. As admitted in oral argument there is no question but that this provision
constitutes a waiver by IBEW, and the employees that it represents, to engage
in concerted activities against WNEV-TV during the life of this agreement,
including by reason of the Technician's Lounge grievance. In fact, under
Section 5.18(a), WNEV-TV "may impose any disciplinary action, including
discharge" upon any employee by reason of such activities. The impact of this
situation is self-evident. "There is no exception in the 'no strike' clause and
none therefore should be read into the grievance clause, since one is the quid
pro quo for the other." American Mfg. Co., supra, 363 U.S. at 567, 80 S.Ct. at
1346; Warrior & Gulf, 363 U.S. at 583, 80 S.Ct. at 1353.
II
15
Thus far we have been dealing with issues of substantive arbitrability, e.g.,
whether the subject matter of the dispute is arbitrable. See generally, Elkouri &
Elkouri, How Arbitration Works, Bureau of National Affairs, Inc., Washington,
D.C. (1985), at pp. 212-221.
16
Appellee also raises an issue related to procedural arbitrability, e.g., whether the
procedures required by the contract to present a grievance have been properly
followed. Appellee claims that the alleged contractual violation was not made
within the 30-day period established by the Section 3.01 of the collective
bargaining contract. In view of the fact that arbitrability, vel non, must be
determined initially by the court, Atkinson v. Sinclair Refining Co., 370 U.S.
238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), we might have some difficulty in
thinking failure to file was a mere procedural matter for the arbitrator, John
Wiley & Sons v. Livingston, 376 U.S. 543, 555-58, 84 S.Ct. 909, 917-19, 11
L.Ed.2d 898 (1964) if the union had filed no demand of any kind within the 30
days. However, it did file within 30 days, and sometime thereafter sought to
amend by adding references to various sections of the contract. Whether these
two steps constituted impermissible procedure is surely a question for the
arbitrator if he decides that the original grievance phraseology was insufficient.
17
Reversed and remanded for action consistent with this opinion.
By "past practice" is meant in labor relations jargon that custom and usage of
the shop have established certain acquired rights or conditions of employment.
This is a provision that may be incorporated into specific contractual language.
See Harold S. Roberts, Roberts' Dictionary of Industrial Relations, BMA
Incorporated, Washington, D.C. (1966), p. 307. See also Cox, Reflections
Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1500 (1959). No such specific
clause exists in the present controversy, however
The district court referred to the following contract provisions as being alleged
by IBEW as prohibiting elimination of the Technician's Lounge: Recognition
(Article 1.02) (IBEW alleged that it had the right to organize and bargain, and
that this employee lounge was an important element of this process; it claimed
that unilateral elimination of this condition violated the right to bargain
collectively); Stewards and Inspection (Articles 3.03 and 3.04) (IBEW claimed
that the existence of the lounge was critical to the stewards' operation); Meal
Periods (Articles 5.06 and 6.03) (IBEW claimed the lounge was a critical
aspect of the meal period); Reasonable Rules (Article 8.05(b) ) (IBEW claimed
that the elimination of the lounge was not a "reasonable" rule)
