Laundry, Dry Cleaning and Dye House Workers International Union, Local 93, of Springfield, Missouri v. Robert M. Mahoney

491 F.2d 1029

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 13, 1974
• Docket: 72-1731
• Status: Published

Opinions

HEANEY, Circuit Judge,

with whom LAY, BRIGHT and WEBSTER, Circuit Judges, join.

This matter comes before the Court en banc on a petition for rehearing. The sole issue is whether the trial court erred in requiring the parties to a collective bargaining agreement to submit a mid-contract wage dispute to binding arbitration.¹

On August 8, 1968, the Union entered into a collective bargaining agreement with the then owner of the business. Article XX of the agreement provides:

Section 1. This agreement shall remain in full force and effect until August 8, 1973, and from year to year thereafter, unless sixty (60) days prior to August 8, 1973, or any year thereafter, the Union notifies the Employer or the Employer notifies the Union of its desire to terminate or modify this Agreement. This notice must be written.

Section 2. Either the Employer or the Union shall have the right as of August 8, 1971, to reopen for negotiation on the subject of wages and seniority only, upon either party giving written notice to the other at least sixty (60) days prior to such reopening date. In the absence of such notice, the existing conditions shall continue to remain in effect until the expiration date of the Agreement.

Thereafter, most of the assets of the business were sold to the Bormon Investment Company, and that firm became obligated to abide by the terms of the agreement as a successor employer.

The Union and the Employer exercised their option to reopen the contract on wages and seniority by giving a timely notice. The parties were unable to reach an agreement on either issue. The Union demanded that the unresolved issues be submitted to arbitration. The Employer refused on the grounds that it was not obligated to arbitrate these issues. The Union then brought an action seeking to require the Employer to submit the dispute to arbitration.

The agreement generally establishes wage rates and working conditions. It specifically provides:

ARTICLE I.

Purpose

Section 1. It is the intent and purpose of the parties hereto, to set forth herein their basic agreement covering wages, hours of work, and conditions of employment to be observed between the parties hereto, and to provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.

* * * * * *

ARTICLE XIII.

No Strike or Lockout

Section 1. There shall be no strikes, stoppages, slowdowns, or concerted activity interrupting or interfering with production, or lockouts, for any reason whatsoever during the life of this Agreement.

It also contains a grievance and arbitration clause which reads as follows:

ARTICLE XIV.

Grievance and Arbitration

Section 1. It is hereby agreed that the Union may have one (1) duly accredited representative to be known as the “Steward” in each plant to be selected by the Union. It shall be his or her duty to receive complaints and to present them to the management. * * *

Section 2. In order to determine the existence and/or validity of a grievance, the Steward shall notify the Plant Manager or his designated representative of the charge by an employee, and as soon as practicable, the Steward and the Employer representative shall discuss the matter with the view of resolving the issue if possible. * * *

Section 3. If the grievance is not settled in the manner set forth in Section 2 within two (2) working days after the Steward has first discussed it with the Plant Manager, it shall be reduced to writing and considered between the Business Agent and Company representatives.

Section U. If not settled within five (5) working days as set forth in Section 3, the matter shall be referred to arbitration.

Section 5. Each party shall select an arbitrator [.] * * '* Should there be no agreement between the two arbitrators as to the third arbitrator, application shall be made to the Federal Mediation and Conciliation Service in Washington, D. C., for a panel of five (5) nominees. The parties shall alternate in striking two names each and the remaining shall be the impartial arbitrator. The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *

* * * * * *

ARTICLE XVIII.

Savings Clause

Section 1. If any law now existing or hereinafter enacted, or any proclamation, regulation, or edict of any state or national agency shall invalidate any portion of this Agreement, the entire Agreement shall not be invalidated, and either party hereto, upon notice to the other, may reopen for negotiation the invalidated portion, and if agreement thereon cannot be reached, within thirty (30) days, either party may submit the matter to arbitration as herein provided.

The matter was submitted to the trial court on cross-motions for summary judgment. The court initially determined that the question of arbitrability was for it to decide. It then held, on the authority of the United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), that the dispute was arbitrable because no forceful evidence of an intent or purpose to exclude the dispute from arbitration was evidenced.

The Employer argues on appeal: (1) that they are under no obligation to arbitrate any wage and seniority issues; (2) that their only obligation under the agreement is to negotiate on the two issues, and they have fulfilled that obligation; (3) that arbitration is only available to resolve employee grievances, and then only after such grievances have been processed in accordance with Sections 1, 2, 3 and 4 of Article XIV of the agreement; and (4) that, here, no grievance exists, and that the dispute between the Employer and the Union was not processed in accordance with the above sections.

The trial court correctly held that the issue of arbitrability was one for it to decide. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Drake Bakeries v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).

The trial court also properly decided that the midterm contract dispute between the Employer and the Union over wages and seniority is an arbitrable one.

Warrior teaches:

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For 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. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or agreed to give the arbitrator power to make the award he made. 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 to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

* * -X- * -X- -X-

* * * 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, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.

United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. supra at 582, 584-585, 80 S.Ct. 1347, 1353, 1355. Accord, Local Union No. 4, IBEW, AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th Cir. 1972) ; Builders Ass’n of Kansas City v. Greater Kansas City Lab. D.C., 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964).²

We are convinced, as was the trial court, that it cannot be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute.³ Although the “Grievance and Arbitration” clause speaks of employee grievances, the “purpose” clause of the agreement asserts that the agreement is intended to provide “procedures for the * * * equitable adjustment of all grievances and disputes arising between the Employer and the Union * * * ”. If the contract is to be read as a whole, as it must, Montana-Dakota Utilities Co. v. N. L. R. B., 455 F.2d 1088 (8th Cir. 1972), effect should be given to this language. The savings clause speaks of submitting matters other than grievances to “arbitration as herein provided,” thus negating an intent to limit the arbitration clause in the manner suggested by the appellant. Moreover, the collective bargaining agreement includes an absolute “no strike, no lockout” clause. This inclusion lends support to the view that the collective bargaining agreement was intended to completely effectuate the federal policy of promoting industrial stabilization through collective bargaining.⁴

In summary, we not only fail to find forceful evidence of a purpose to exclude the mid-contract wage dispute from arbitration, but we find evidence of a contrary purpose. The Warrior rule is thus triggered.⁵

Concern has been expressed that the effect of this opinion will be to make midterm wage disputes in multi-year contracts subject to arbitration whenever a collective bargaining agreement contains an arbitration and a no-strike clause. We find no cause for such concern. The parties to a collective bargaining agreement can, by plain language, exclude such dispute from arbitration. They can lift the “no strike, no lockout” pledge in such circumstances, see, United Steel Workers v. Warrior and Gulf Navigation Co., supra, n. 5, 579, 80 S.Ct. 1347, or permit the pledge to remain in effect and require the dispute to be resolved by bargaining or not at all. All that is necessary is that the parties make their intent to exclude arbitration clear. They have not done so here.

We find no merit to the Employer’s contention that the judgment against three minor defendants should be set aside because it was imposed on them without the prior appointment of a guardian ad litem. The first exception to Rule 17(b), 28 U.S.C., permits a partnership to be sued in its common name for the purpose of enforcing against it a substantive right existing under the laws of the United States. The right to arbitrate is such a right.

Moreover, the trial court properly found that the minors’ interests were adequately protected by the presence of their parents as defendants. See, Westcott v. United States Fidelity and Guaranty Company, 158 F.2d 20 (4th Cir. 1946); Rutland, Administrator v. Sikes, et al., 203 F.Supp. 276 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963).

The judgment below is affirmed by an equally divided court.

1 . Initially, a divided panel affirmed the District Court holding that the parties were required to submit the dispute to binding arbitration. Laundry, Dry Cleaning and Dye House Workers International Union, etc. v. Robert M. Mahoney et al., No. 72-1731, filed August 16, 1973 (unpublished).

2 . See, 85 Harv.L.Rev. 636 (1972) ; Griswold, The Supreme Court 1959 Term, 74 Harv.L.Rev. 81, 181 (1960) ; 59 Mich.L.Rev. 454 (1961) ; 45 Mimi.L.Rev. 282 (1960) ; The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593 (1970).

3 . In Hughes Tool Co., 36 Lab.Arb. (1960), an arbitrator reached a result generally inconsistent with that reached here. The arbitrator stated:

Both parties referred in their respective arguments to the recent decisions of the United States Supreme Court in * * * American Manufacturing Co., [and] Warrior * * *. Those cases all dealt, however, with the power of federal courts, rather than with the discretion of arbitrators. Construing those cases in a way most favorable to the Union here involved would lead at most to the conclusion that if the parties had litigated this issue in federal court instead of submitting it to private arbitration, the court would have ruled that the issue was arbitrable ; or that, conversely, if the arbitration decision in this case were in favor of arbitrability, the court would decline to vacate it on review.

Id. at 1129.

4 . * * * The present federal policy is to promote industrial stabilization through the collective bargaining agreement. * * *

Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being ' the “quid pro quo” for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972.

United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).

5 . The demands of the Steel Workers trilogy were recently reiterated in Gateway Coal Company v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (January 8, 1974), in which a general arbitration clause was held applicable to safety disputes.

The following cases are distinguishable on their facts: West Coast Telephone Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219 (9th Cir. 1970) ; Federal Labor Union No. 18887 v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir. 1970) ; Radio Corp. of Am. v. Association of Scientists & Pro. Eng. P., 414 F.2d 893 (3rd Cir. 1969). In each case, the collective bargaining agreement made it clear that the issue the Union sought to arbitrate was, in fact, non-arbitrable. dee also, Firestone Tire and Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th Cir. 1973) ; Ford v. General Electric Co., 395 F.2d 157 (7th Cir. 1968).