District 37 of the International Ass'n of Machinist & Aerospace Workers v. Lockheed Engineering & Management Services Co.

897 F.2d 768
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 3, 1990
DocketNo. 89-2533
StatusPublished
Cited by6 cases

This text of 897 F.2d 768 (District 37 of the International Ass'n of Machinist & Aerospace Workers v. Lockheed Engineering & Management Services Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
District 37 of the International Ass'n of Machinist & Aerospace Workers v. Lockheed Engineering & Management Services Co., 897 F.2d 768 (5th Cir. 1990).

Opinion

JERRE S. WILLIAMS, Circuit Judge:

Appellants, District 37 of the International Association of Machinists & Aerospace Workers and its Local Lodge No. 1786 (collectively “the Union”), and appellee, Lockheed Engineering & Management Services Company, Inc. (“LEMSCO”), entered into a collective bargaining agreement on August 27, 1983, on behalf of the employees of the NASA/Johnson Space Center Engineering and Science Program at Ellington Air Force Base in Texas. In August 1986, Rosalie Powell, a bargaining unit employee and union steward, filed a grievance against LEMSCO. In the grievance, she claimed that the company violated Article 1, section 11, of the collective bargaining agreement1 when it laid off its hourly bargaining unit illustrators while hiring salaried personnel to perform illustration “work normally performed by employees in the bargaining unit”.2

The Union sought arbitration of this dispute under the agreement’s grievance pro[770]*770cedures.3 LEMSCO refused to proceed with arbitration, however, asserting that the collective bargaining agreement only covers “program” work and hence does not provide for arbitration of disputes concerning “proposal” work.4 It also claimed that the resolution of two previous grievances on the same subject matter barred the subject grievance.

Upon LEMSCO’s refusal to proceed to arbitration, the Union filed suit, pursuant to 29 U.S.C. § 185(a), in federal district court seeking judicial enforcement of the arbitration clause. In the district court, LEMSCO filed a motion for summary judgment. The Union filed a cross-motion for partial summary judgment, reserving the issue of attorney’s fees in the event it prevailed. The district court granted summary judgment in favor of LEMSCO, finding that the collective bargaining agreement, including the grievance/arbitration clause, does not address or cover proposal work, and that LEMSCO therefore had no duty to arbitrate a grievance regarding the assignment of proposal work.

The Union appeals and requests this Court to reverse and render on the issue of arbitrability, and reverse and remand on the issue of attorney’s fees.

I.

Our central task in this appeal is to determine whether the Union asserted the type of grievance that is subject to the arbitration clause in the collective bargaining agreement — the “arbitrability” of the grievance. In the landmark Steelworker Trilogy cases—USWA v. American Manufacturing, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); USWA v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and USWA v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) — the Supreme Court established four fundamental principles that control and guide our inquiry.

The first principle is that “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352); see also International Assn, of Machinists & Aerospace Workers, AFL-CIO Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 221 (5th Cir.1987). The second principle is that the arbitrability of a grievance is an issue for judicial determination. AT & T v. CWA, supra, 475 U.S. at 649, 106 S.Ct. at 1418. Third, in deciding the arbitrability issue, a court is not to rule on the merits of the grievance. Id. at 649-50, 106 S.Ct. at 1419. Fourth, the existence of an arbitration clause in the collective bargaining agree[771]*771ment raises a presumption of arbitrability. Id. at 650, 106 S.Ct. at 1419.

The contract between LEMSCO and the Union contains an express provision that any unsettled grievance which involves the interpretation or application of the agreement may be submitted to arbitration. Under the fourth principle, this provision raises a presumption of arbitrability. “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.” USWA v. Warrior & Gulf Navigation Company, supra, 363 U.S. at 582-83, 80 S.Ct. at 1353. “In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail ...” Id. at 584-85, 80 S.Ct. at 1354.

The subject agreement does not contain any express language limiting the arbitration clause or excluding grievances claiming a violation of Article 1, Section 11 of the agreement from the operation of the arbitration clause. We also fail to find any “forceful evidence” in the record that the parties to the agreement intended to exclude such claims from arbitration.

Appellee urges, as the district court concluded, that by its express terms the entire collective bargaining agreement covers only program work and thus excludes proposal work. Therefore, LEM-SCO cannot have a duty under the agreement to arbitrate a grievance that concerns proposal work. Alternatively, it asserts that the history of the agreement yields sufficiently “forceful evidence” of an intent to exclude grievances concerning proposal work to rebut the presumption of arbitrability.

Appellee, however, fails to understand the limited scope of our inquiry. We cannot look to the merits of the underlying grievance to determine its arbitrability. Admittedly, we look to the terms of the contractual agreement to determine whether the parties intended to subject a particular dispute to arbitration. Contrary to the assertions of LEMSCO, however, we must conclude that the arbitration clause clearly is reasonably interpreted to include grievances claiming that proposal work is covered by the contract if it is “work normally performed by employees in the bargaining unit” within the meaning of Article 1, Section 11, of the agreement.

Appellee relies on the definition of “the Company” in the preamble to the agreement, and on the supporting affidavit of Arthur Lemke, LEMSCO’s Deputy Manager of Human Resources, as forceful and conclusive evidence of the parties’ intent to exclude proposal work from the operation of the agreement as a whole and the arbitration clause in particular. LEMSCO also points to two previous grievance settlements as additional evidence that the parties did not intend to arbitrate grievances concerning proposal work. We find, however, that the evidence is not persuasive. First, the preamble merely identifies the parties

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897 F.2d 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/district-37-of-the-international-assn-of-machinist-aerospace-workers-v-ca5-1990.