Local Division No. 812 of Clarksburg v. Central West Virginia Transit Authority

365 S.E.2d 76, 179 W. Va. 31, 1987 W. Va. LEXIS 672, 127 L.R.R.M. (BNA) 3290
CourtWest Virginia Supreme Court
DecidedDecember 18, 1987
DocketNo. 17258
StatusPublished
Cited by10 cases

This text of 365 S.E.2d 76 (Local Division No. 812 of Clarksburg v. Central West Virginia Transit Authority) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Local Division No. 812 of Clarksburg v. Central West Virginia Transit Authority, 365 S.E.2d 76, 179 W. Va. 31, 1987 W. Va. LEXIS 672, 127 L.R.R.M. (BNA) 3290 (W. Va. 1987).

Opinion

McHUGH, Justice:

This case is before this Court upon an appeal from an order of the Circuit Court of Harrison County which refused to grant the appellant’s petition for a mandatory injunction requiring the appellee to submit the matter of an employee discharge to arbitration pursuant to the parties’ collective bargaining agreement and W.Va.Code, 8-27-21(g) [1969].

The appellant is Local Division 812 of Clarksburg, West Virginia, of the Amalgamated Transit Union, an unincorporated labor association. The appellee is the Central West Virginia Transit Authority, an urban mass transit authority created pursuant to W.Va.Code, 8-27-1 to -27, as amended.

This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

I

Donald Moore was employed as a driver by the appellee and was a member of the appellant labor organization. On November 12, 1982, he received notice from the appellee’s general manager, John Hostut-[33]*33ler, that he was being terminated for failure to remit money to the appellee from a charter trip on which he had driven and collected money from passengers. On November 19, 1982, Moore filed a grievance with the authority pursuant to a negotiated collective bargaining agreement between the parties.1 Hostutler replied to the grievance on November 26,1982, and reaffirmed his decision to discharge Moore.

Shortly thereafter, a union officer contacted Hostutler and informed him of the union’s decision to pursue the matter to arbitration. Hostutler refused to proceed to arbitration stating that the appellant had failed to adhere to the contractual provisions of the collective bargaining agreement.

On December 16, 1982, the union president responded to Hostutler’s refusal to arbitrate by requesting a meeting of the Transit Authority members pursuant to the grievance procedure established in the collective bargaining agreement, as soon as possible. This letter also reflected the appellant’s intention to proceed to arbitration, if necessary. On December 27, 1982, Hos-tutler advised the union president that his letter requesting a meeting of the Transit Authority members was presented to the Chairman of the Board of Directors of the Central West Virginia Transit Authority.

Subsequent correspondence between the parties essentially reveals that the appellee refused arbitration because the union failed to adhere to the contractual terms of the collective bargaining agreement by first appealing to the Transit Authority members from the initial grievance filed against the general manager for his decision reaffirming Moore’s discharge. The appellee maintained that this appeal should have been taken within ten days from Hostutler’s letter reaffirming Moore’s discharge. Hos-tutler’s response to the employee’s grievance was dated November 26, 1982, while the letter requesting the meeting was not written until December 16, 1982.

Another exchange of correspondence between the parties ensued, with counsel for the union requesting again that the appel-lee proceed to arbitration. Once again, the appellee refused to submit to arbitration but did sign the Federal Mediation and Conciliation Service form which with the authorized signature allowed the service to [34]*34provide the parties with a list of arbitrators. The appellee then informed the union that they would not participate in arbitration.

In response, the appellant sought a mandatory injunction in circuit court to require the appellee to proceed to arbitration upon the grievance of Donald Moore. A hearing was subsequently held on this petition, and an order was entered denying the requested relief. Thereafter, the appellee filed a motion to dismiss this appeal based on untimeliness of the appeal and the lack of jurisdiction of this Court to consider the appeal. This Court denied that motion.

II

The issue before us in this appeal is whether an employee discharge is a subject required to be submitted to arbitration pursuant to the parties’ collective bargaining agreement and W.Va.Code, 8-27-21(g) [1969].2

The appellant contends that the employee’s discharge is arbitrable because the language of the collective bargaining agreement itself and W.Va.Code, 8-27-21(g) [1969] encompasses discharge as a “labor dispute relating to the terms and conditions of employment which is not settled through any established grievance procedure.”3 The appellee, on the other hand, maintains that neither the language of the collective bargaining agreement nor the pertinent statutory authority provide for arbitration of an employee discharge because a “discharge” is not a term or condition of employment.

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 of the United States created a strong presumption favoring arbitration in contract disputes.4 See Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 483 n. 4, 236 S.E.2d 439, 445 n. 4 (1977). The court noted that “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute,” arbitration should not be denied. Id. at 582-83, 80 S.Ct. at 1353, 4 L.Ed.2d at 1417. Doubts as to whether a particular grievance is arbitrable should be resolved in favor of arbitration. Id. at 583, 80 S.Ct. [35]*35at 1353, 4 L.Ed.2d at 1418. Specifically, the court held that “[i]n 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 ... the exclusion clause is vague and the arbitration clause quite broad.” Id. at 584-85, 80 S.Ct. at 1354, 4 L.Ed.2d at 1419. See also Monongahela Power Co. v. Local 2332 International Brotherhood of Electrical Workers, 484 F.2d 1209, 1213 (4th Cir.1973); Chicago Area Vending Employers Association v. Local 761 International Brotherhood of Teamsters, 564 F.Supp. 1186, 1193 (N.D.Ill.1983); Cox v. Guy F. Atkinson Co., 468 F.Supp. 677, 681 (N.D.Ind.1979); Local 1638, United Mine Workers v. Consolidation Coal Co., 396 F.Supp. 971, 973 (N.D.W.Va.1975).

In adherence to the substantial precedent favoring such a rule, we hold that in determining whether or not the parties to a collective bargaining agreement have agreed to submit a particular issue to arbitration, it must be recognized that there is a presumption favoring arbitration, and this presumption may be rebutted only where it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

The collective bargaining agreement in the case before us contains broad language referring “[a]ll grievances arising between the Transit Authority and the Union ...” to arbitration. The focus then turns to the protective provisions of W.Va.Code,

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365 S.E.2d 76, 179 W. Va. 31, 1987 W. Va. LEXIS 672, 127 L.R.R.M. (BNA) 3290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/local-division-no-812-of-clarksburg-v-central-west-virginia-transit-wva-1987.