International Brotherhood of Electrical Workers, Local 2188 v. Western Electric Company, Incorporated

661 F.2d 514, 108 L.R.R.M. (BNA) 3027, 1981 U.S. App. LEXIS 15892

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 18, 1981
• Docket: 80-3523
• Status: Published

Opinions

REAVLEY, Circuit Judge:

On September 28, 1977, the International Brotherhood of Electrical Workers, Local 2188 filed a grievance with the Western Electric Company. The union claimed that all of the “Group I Mechanics” in a certain department — about forty employees— should be reclassified as “Group II Machinists” because of the work the company had them performing. The company denied the grievance by letter of January 11, 1978, and the union made a timely demand for arbitration by letter of January 27, 1978.

In a letter dated March 21, 1979, the company took the position that the group claim was not arbitrable.¹ The union brought this suit to compel arbitration. Both sides moved for summary judgment. The district court granted summary judgment to the company, relying entirely on the terms of two collective bargaining agreements between the union and the company.

The two agreements in question are the “General Agreement” between the union and the company, covering the terms and conditions of employment for all union members, and the “Journeyman Trades Plan Agreement” (“JTPA”), covering certain terms and conditions, including wages and job classifications, for certain skilled employees. Arbitrability of disputes over job classifications under the JTPA is governed by Article 5(2)(a) of that agreement, which provides in pertinent part:

A grievance involving . . . the question whether an employee has been classified in the appropriate JOURNEYMAN TRADES OCCUPATION ... may be processed by the UNION in accordance with the provisions of . . . ARTICLE 11, ARBITRATION of the GENERAL AGREEMENT, provided that the authority of the arbitrator, in any such case, shall be limited to a determination as to whether the COMPANY’S judgment has been unreasonably exercised ....

Article 5(1) of the JTPA makes it clear that, “except as specifically provided . . ., neither such grievance nor the provisions of this Agreement shall be subject to the provisions of ARTICLE 11, ARBITRATION of the GENERAL AGREEMENT.”

The company argues, and the court below agreed, that the use of the term “an employee” in Article 5(2)(a) of the JTPA makes it clear that the question whether a group of employees has been properly classified is not arbitrable.² We disagree.

In United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the Supreme Court established the rule for interpreting arbitration clauses in collective bargaining agreements:

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.

id at 582-83, 80 S.Ct. at 1353.³ Thus, the question presented is whether we can say “with positive assurance” that a clause covering a dispute concerning “an employee” does not cover an identical dispute concerning “employees.”

The company argues that it did not agree to submit to what it terms “group arbitration.” It concedes that the dispute over each of the forty employees’ classifications is arbitrable, yet contends that the use of the term “an employee” manifests an intent to submit only issues involving one employee at a time. It offers no extrinsic evidence, such as bargaining history,⁴ to support this interpretation; and, of course, the union disputes that the words “an employee” were used with any such intent. If the company intended the words “an employee” to have such an effect, we think that it had to make its understanding much clearer than this.

If we were interpreting a statute giving a right of action to a “person,” rather than a contractual clause granting a right of arbitration, we surely would not hold that the use of the word “person” excluded, as a substantive matter, the possibility that the action could be brought by several “persons.” If we did, then no joint action or class action could be brought under such a statute, since our court-made rules of civil procedure do not and cannot amend the substantive rights granted by Congress. Yet, our statute books are teeming with provisions which grant a right of action to the singular “person,” and which are often the basis of multi-plaintiff litigation.⁵ The statutory analogy is a fitting one, for “[t]he collective bargaining agreement ... is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.... It calls into being a new common law — the common law of a particular industry or of a particular plant.” Warrior, 363 U.S. at 578-79, 80 S.Ct. at 1351.

The company argues that separate arbitrations are required because the forty employees “perform various and varying functions.” This contention addresses the merits of the union’s claim that all forty employees are misclassified; the merits are for the arbitrator, not the court, to decide. Warrior, 363 U.S. at 585, 80 S.Ct. at 1354. Similarly, any argument that the provisions of the two bargaining agreements impose a procedural requirement that each employee’s classification be considered separately is for the arbitrator. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58, 84 S.Ct. 909, 918-19, 11 L.Ed.2d 898 (1964); Tobacco Workers International Union v. Lorillard Corp., 448 F.2d 949, 954 (4th Cir. 1971); Avon Products, Inc. v. International Union, UAW, 386 F.2d 651, 658-59 (8th Cir. 1967). We of course express no opinion on these questions; we hold only that the substance of the union’s claim is arbitrable under the terms of the JTPA and the General Agreement.

Since the company offered nothing more than the terms of these two agreements in cross-moving for summary judgment, the district court should have rendered summary judgment for the union. On remand, therefore, the district court shall enter an order compelling the company to arbitrate the union’s grievance.

REVERSED and REMANDED with instructions.

1 . This letter was written after the parties had selected an arbitrator and set an arbitration date. The parties dispute the precise sequence of events and the substance of certain conversations between representatives for the union and the company, the union arguing that the company has waived, or should be estopped from raising, any objection to the arbitration. Because we conclude that the claim was arbitrable, we find it unnecessary to resolve these factual and legal issues.

2 . The company and the district court also point to one sentence of the arbitration provisions in the General Agreement, which become applicable once it is determined that the JTPA makes the claim arbitrable. That sentence provides, “Each referral to arbitration shall embrace but one (1) ... matter in dispute, unless otherwise stipulated by agreement between the UNION and the COMPANY.” Reliance on this provision, however, simply begs the question of what is “one matter in dispute” under the JTPA. As the company itself vigorously asserts, see note 3 infra, the General Agreement, with its broad arbitration clauses, is separate from the JTPA; thus, it is not the primary source for determining which claims are arbitrable under the JTPA.

3 . The company argues, without citation of supporting authority, that the Warrior “presumption of arbitrability” is inapplicable because the arbitration clause at issue in Warrior was a “standard” or “broad” arbitration clause — providing for arbitration “ ‘as to the meaning and application of the provisions of th[e] Agreement,’” 363 U.S. at 576, 80 S.Ct. at 1349-while the clause in the JTPA is a “narrow” one. We reject this argument. While Warrior and its Supreme Court progeny have all involved “standard” arbitration clauses, the Court has never indicated, in its statement of the rule, that the presumption is limited to such broad clauses. See, e. g., Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 254-55, 97 S.Ct. 1067, 1073-74, 51 L.Ed.2d 300 (1977); Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 376-80, 94 S.Ct. 629, 636-38, 38 L.Ed.2d 583 (1974). Such a limitation would render the presumption of little value as a rule of construction: we would first have to determine that the arbitration clause is “broad” enough to cover all contractual disputes, and only then apply the presumption (when it is no longer needed). Moreover, this court has consistently applied the presumption to arbitration clauses of varying breadth. See, e. g., Waverly Mineral Prods. Co. v. United Steelworkers, 633 F.2d 682 (5th Cir. 1980) (clause providing only for arbitration of grievances concerning discharge). The narrowness of an arbitration clause will of course limit the court to determining whether the asserted claim is within its narrow confines: we will not read a “clause of limited scope” to override a specific exclusion when extrinsic evidence makes clear that the asserted claim is within the exclusion, International Union of Operating Eng’rs v. Sid Richardson Carbon Co., 471 F.2d 1175, 1178 (5th Cir. 1973), nor will we adopt an unreasonable interpretation of the words in order to find a dispute arbitrable, see Gangemi v. General Elec. Co., 532 F.2d 861, 865-66 (2d Cir. 1976). But in determining whether a dispute is within the confínes of the arbitration clause, the presumption of arbitrability applies, regardless of whether one party characterizes the clause as “narrow.”

4 . See generally Communications Workers v. Southwestern Bell Tel. Co., 415 F.2d 35, 40-41 (5th Cir. 1969) (dictum) (limited exception to general rule that issue must be decided with reference to the words of the bargaining agreement alone).

The company does point out that the grievance procedure set out in Article 10 of the General Agreement covers complaints by “[a]ny individual employee or group of employees,” and contrasts this phrase with the words “an employee” in the arbitration provisions of the JTPA. We fail to see the significance of this contrast. The company points to no evidence that these two clauses were drafted with reference to one another; indeed, the company is at great pains to point out that these agreements are “entirely separate.” Brief for Appellee at 7; see notes 2 & 3 supra. Thus, the differing terminology could as well be attributable to what different draftsmen thought was necessary to provide for group arbitration, cf. note 5 infra (collecting statutes written in the singular but commonly used for multi-plaintiff litigation), as to any intent to exclude group arbitration. The union could just as well argue that the omission of the word “individual” in the JTPA manifests an intent not to limit JTPA issues to “individual” arbitration. Neither inference is a strong one. The strength of any inference to be drawn from this contrast is weakened even further by the fact that the quoted phrase is from the General Agreement’s grievance, not arbitration, provisions. Without any evidence that the contrasting phrases were consciously written to accomplish the specific result the company ascribes to them, we cannot attach much significance to the contrast.

5 . See, e. g., 42 U.S.C. § 2000e-5(f)(l) (granting the right to bring a civil action to “the person claiming to be aggrieved”) (emphasis added); 42 U.S.C. § 1983 (granting right of action to “any citizen ... or other person ” subjected to deprivation of federal rights under color of state law) (emphasis added); 15 U.S.C. § 78i (granting right of action to “the person . . . injured” by manipulation of security prices) (emphasis added); 15 U.S.C. § 78r (granting right of action to “A person seeking” damages for misleading statements under Securities Act of 1934) (emphasis added).