International v. Caribe

• Court: Court of Appeals for the First Circuit
• Decided: March 13, 1997
• Docket: 96-1505
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1505



            INTERNATIONAL ASSOCIATION OF MACHINISTS and AEROSPACE WORKERS,

                                (AFL-CIO), LOCAL 2725



                                 Plaintiff, Appellee,



                                          v.



                       CARIBE GENERAL ELECTRIC PRODUCTS, INC.,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________



                     Campbell and Bownes, Senior Circuit Judges.
                                          _____________________



                                 ____________________



            Felix Benitez  Colon with whom Rivera Tulla & Ferrer  was on brief
            ____________________           _____________________

        for appellant.

            Luis F. Padilla for appellee.
            _______________


____________________



                                    March 13, 1997

                                 ____________________



BOUDIN,  Circuit  Judge.   The  union,  representing the
                          ______________



            employees of  Caribe  General Electric  ("Caribe"), sued  the



            company in the district court  for damages and related relief



            for a  refusal to arbitrate, or for  an order requiring it to



            arbitrate,  five  specific  grievances  under   a  collective



            bargaining agreement.  The district court ordered arbitration



            as  to  all of  the  grievances, ruling  that  the arbitrator



            should determine whether the  grievances were arbitrable.  We



            hold that  this  was a  matter for  the court  to decide  and



            remand as to four of the grievances for further proceedings.



                 The facts  of importance to this  appeal are undisputed.



            Caribe and  its union  had a collective  bargaining agreement



            which, as  most do, contained many  substantive provisions, a



            grievance  procedure, and an  arbitration provision providing



            for   mandatory  arbitration   of  specified   categories  of



            disputes.   During the  term of  this agreement, Caribe  took



            five  different actions that  caused the union  to invoke the



            grievance procedure  and, when that did  not resolve matters,



            to demand arbitration.   Three  of the grievances grew out of



            one episode:   Ibrahim  Rosario, Herminio L pez,  and Esteban



            Calder n were  group leaders  of three  separate departments.



            The company eliminated  one of  the departments,  integrating



            its functions into  the other two; it  then re-assigned L pez



            and Calder n  as group  leaders of the  enlarged departments,



            and  retained Rosario  but without  a leadership  post.   The


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fourth grievance  concerned Antonio  V zquez, who had  been a



            dispatcher; Caribe eliminated that position, reallocated some



            of the  duties to  a shipping  clerk, and  left V zquez  in a



            lower job  classification.  The fifth  grievance involved the



            temporary assignment of Narciso Torr ns for more than 30 days



            to  perform  the  tasks  of  two  assembly  workers who  were



            consecutively on vacation.  



                 When the grievance  procedure failed to resolve  matters



            and Caribe refused arbitration, the union brought suit in the



            district court under  29 U.S.C.    185,  claiming inter  alia
                                                              ___________



            that the grievances were subject to mandatory arbitration and



            that  the   company  should  be  required   to  proceed  with



            arbitration.   On  cross-motions  for  summary judgment,  the



            district court  ruled that the five  grievances were arguably



            subject  to  mandatory arbitration  and  that  the arbitrator



            should resolve this issue.



                 Caribe has  appealed  the judgment  as  to four  of  the



            grievances,  agreeing  that  the  Torr ns  matter  should  be



            arbitrated.   Conversely,  the  union now  concedes that  the



            district  court  was  mistaken  in  referring  the  issue  of



            arbitrability to  the arbitrator; but  it says that  all five



            grievances are subject to  mandatory arbitration and that the



            order  to  arbitrate  should  be affirmed  outright  on  this



            alternative ground.


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Labor   arbitration   depends   upon    contract,   AT&T
                                                                     ____



            Technologies,  Inc. v. Communications  Workers, 475 U.S. 643,
            ___________________    _______________________



            648 (1986);  Tejidos de Coamo, Inc.  v. ILGWU, 22 F.3d  8, 12
                         ______________________     _____



            (1st  Cir.  1994), and  the  collective bargaining  agreement



            ("CBA") in this case  provides for mandatory arbitration only



            in  certain categories  of  cases,  including "[t]he  claimed



            violation  of  a specific  provision  or  provisions" of  the



            agreement.   CBA art. XXXIV,   6(a).  But even if a grievance



            falls  within this  category, it  is excluded  from mandatory



            arbitration by section  7 of the  same article under  certain



            conditions, such as where the grievance



                 (f) Would require an  arbitrator to consider,  rule

                 on or decide any of the following: 



                      (1)  The elements  of  an employee's  job

                      assignment;



                      (2) The title or other designations of an

                      employee's job classification;



                      (3) The right of  management to assign or

                      reassign work or elements of work.



                 The Supreme  Court has  held that "[u]nless  the parties



            clearly and unmistakably provide  otherwise, the question  of



            whether the parties agreed  to arbitrate is to be  decided by



            the court, not the arbitrator."   AT&T Technologies, 475 U.S.
                                              _________________



            at 649.  Here,  far from agreeing to leave  the arbitrability



            issue  to  the  arbitrator,  the parties  provided  in  their



            agreement  that  in the  event of  a  dispute on  this issue,



            arbitration  may proceed "only after  a final [judgment] of a


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Court  has  determined  that  the  grievance  .  .  .  raises



            arbitrable issues."  CBA art. XXXIV,   4(a).



                 Thus, we agree with both parties that the district court



            went  astray in  ordering arbitration without  first deciding



            itself  that   each  grievance   was  subject  to   mandatory



            arbitration.  To  do so,  the court  had to  decide that  the



            grievance fell  within a provision for  mandatory arbitration



            (e.g.,  section 6) and was not excluded by any other limiting
             ____



            provision (e.g.,  section 7).   We  turn,  therefore, to  the
                       ____



            union's  request that  we decide  the issue  of arbitrability



            ourselves and affirm the district court's arbitration order.



                 Since the union has not supplied us with the grievances,



            it is very hard to tell whether each one rests on a colorable



            claim that  a specific  provision of  the agreement  has been



            violated,  as  required by  section 6.    But even  with that



            information, we could not determine without  more information



            whether  arbitration  of  each  grievance  would  "require an



            arbitrator  to consider,  rule  on  or  decide"  one  of  the



            enumerated subjects that section 7(f) excludes from mandatory



            arbitration.    For  the same  reason,  Caribe's  alternative



            request  that we  direct  summary judgment  in  its favor  is



            without merit.



                 While a  remand for further proceedings  is necessary, a



            further word  or two may be  helpful to the  court on remand.



            Caribe  has not  limited  its claim  of non-arbitrability  to


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section 7(f) but has also invoked other grounds of objection;



            section 7(e) of the  same article, which Caribe has  cited on



            appeal, is a close  companion to section 7(f) and  might need



            attention.   But  we  are concerned  about Caribe's  repeated



            invocation of two "management  rights" provisions as  shields



            against mandatory arbitration.



                  One is  the basic "management rights"  provision, in an



            article unrelated  to arbitration,  which seems to  us wholly



            beside  the point.   CBA  art. IV.   That  provision reserves



            management  rights  broadly  over  a  range  of   potentially



            pertinent subjects--such  as  reallocation of  work--but  the



            management  rights   are  retained  "subject  only  to  those



            provisions  of this  Agreement which  expressly qualify  this



            right."   Given  this  "subject .  . .  to"  proviso, we  are



            baffled  as  to  why  Caribe thinks  this  management  rights



            provision has any relevance.   



                 The union's  grievance claims  may seem obscure;  but to



            the  extent   they  rest  upon  the   violation  of  specific



            provisions,   we  seriously   doubt  that   the   article  IV



            "management  rights" clause  could be  read either  to negate



            those provisions  or to restrict  arbitration.  See  CBA art.
                                                            ___



            XXXIV,    4(b)(4);  United  Steelworkers  v. Warrior  &  Gulf
                                ____________________     ________________



            Navigation Co., 363 U.S. 574, 584-85 (1960).  The parties are
            ______________



            welcome to argue this  issue on remand, if Caribe  chooses to



            press it,  but we do not  think the company should  be unduly


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encouraged by its earlier  success in International Assoc. of
                                                  _______________________



            Machinists  & Aerospace Workers v. General Elec. Co., No. 89-
            _______________________________    _________________



            1115JP, 1990 WL 29806 (D.P.R. 1990), which was not appealed.



                 The   arbitration  article  itself  contains  a  second,



            somewhat less  detailed reservation of management rights, CBA



            art. XXXIV,   4(b)(4), but it too appears to permit mandatory



            arbitration--if  otherwise provided--so long as the grievance



            is based on an express limitation in the agreement and is not



            subject to  section 7's exclusions.   See id. ("[T]he parties
                                                  ___ ___



            have not  agreed to arbitrate demands  which challenge action



            taken  by the  company in  the  exercise of  any [management]



            rights, except where such challenge is based upon a violation
                    _____________________________________________________



            of any  such expressed limitations (other than  those set out
            _____________________________________________________________



            in Section 7 of this Article XXXIV).") (emphasis added).
            ___________________________________



                 On remand,  we suggest that the  district court consider



            on a grievance-by-grievance basis  whether--as to each of the



            four remaining grievances--the grievance  (1) is based upon a



            colorable  claim that  the company's  action violated  one or



            more  specific  provisions of  the agreement  and (2)  is not



            excluded from  mandatory arbitration  by one or  more of  the



            exclusions  of  section  7.     Unless  both  conditions  are



            satisfied, it appears  that mandatory  arbitration cannot  be



            ordered,  so the district court may  not need to rule on both



            conditions.


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There  may  be  other  bases  for,  or  limitations  on,



            mandatory  arbitration  that  we  have  overlooked;   but  we



            encourage the  parties to help  the district court  focus the



            issues.   As already  noted,  we doubt  that the  management-



            rights reservations are pertinent.  And it certainly does not



            help  for the  union  to invoke  the Supreme  Court's default



            presumption  in  favor of  arbitration  where,  as here,  the



            collective  bargaining  agreement   explicitly  negates   the



            presumption.  CBA Art.  XXXIV,   4(b)(5);  AT&T Technologies,
                                                       _________________



            475 U.S. at 650.



                 Finally, it  is worth emphasizing that  the issue before



            the  district court on remand in  this case is not the merits



            of the grievances; it  is simply whether they are  subject to



            mandatory arbitration.   All that the union  complained of in



            this case  was the  failure to afford  mandatory arbitration,



            and that is the only issue  before us or the district  court.



            AT&T Technologies, 475 U.S. at 649-50.  Needless to say, even
            _________________



            if a  grievance is  excluded from mandatory  arbitration, the



            union is not necessarily  without contractual remedies for an



            alleged violation of  the agreement.  Cf. Vaca v.  Sipes, 386
                                                  ___ ____     _____



            U.S. 171, 184 n.9 (1967).



                 The order of the district court is therefore affirmed as
                                                              ________



            to the Torr ns grievance  but modified to require arbitration
                                          ________



            on the merits, the company having agreed that  this grievance



            is arbitrable.  The order requiring arbitration is vacated as
                                                               _______


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to  the  other  four  grievances  and  remanded  for  further
                                                   ________



            proceedings not inconsistent with this decision.



                 It is so ordered.
                 ________________


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