Peerless Pressed Metal Corporation v. International Union of Electrical, Radio and MacHine Workers, Afl-Cio, 451 F.2d 19, 1st Cir. (1971)
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Scribd Government DocsPeerless Pressed Metal Corporation v. International Union of Electrical, Radio and MacHine Workers, Afl-Cio, 451 F.2d 19, 1st Cir. (1971)
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Scribd Government Docs451 F.
2d 19
78 L.R.R.M. (BNA) 2828, 66 Lab.Cas. P 12,174
PEERLESS PRESSED METAL CORPORATION, Plaintiff,
Appellant,
v.
INTERNATIONAL UNION OF ELECTRICAL, RADIO AND
MACHINE
WORKERS, AFL-CIO, et al., Defendants, Appellees.
No. 71-1198.
United States Court of Appeals,
First Circuit.
Nov. 8, 1971.
Julius Kirle, Boston, Mass., for appellant.
Michael A. Feinberg, Boston, Mass., for appellees.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
PER CURIAM.
This is an action for a declaratory judgment seeking to enjoin arbitration of a
labor grievance. The district court denied relief, but by agreement of the parties
arbitration was postponed until the actions should be disposed of. Appellant
employer and appellee union1 for many years have had a collective bargaining
agreement calling for arbitration of "any controversy between the parties or
between the Company and employees covered by this Agreement as to any
matter involving the interpretation or application of any of the provisions of this
Agreement" which has not been resolved through the grievance machinery. In
1965 one Burke, an employee of thirteen years seniority, was promoted to
supervisor. Five years later he was laid off, and sought reinstatement into the
bargaining unit as a rank and file employee. The employer refused and the
union, after unsuccessfully invoking the grievance procedure, sought
arbitration. The company brought this action to enjoin arbitration, claiming that
the dispute is not arbitrable because Burke, as a laid-off supervisor, is not a
person for whom the union is entitled to grieve.
2
It is common ground that although a collective bargaining agreement is a
contract, it is to be more liberally construed than an agreement between private
individuals. A court should not refuse to order arbitration "unless it may be said
with positive assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute." United Steelworkers of America
v. Warrier & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353,
4 L.Ed.2d 1409 (1960). This does not grant to the courts a license to inquire
into the merits on the theory that they are enforcing a clause limiting arbitration
to disputes requiring an interpretation of the agreement. A dispute may not be
kept from the arbitrator on this ground so long as it is "possible", even if as a
court we might not think it "reasonable", for an arbitrator to decide in favor of
the party demanding arbitration without thereby, in effect, amending the plain
language of the agreement. See John Wiley & Sons v. Livingston, 376 U.S.
543, 555, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Camden Industries Co. v.
Carpenters Local Union No. 1688, 353 F.2d 178, 180 (1st Cir. 1965).
The company relies on Article II-Coverage, which provides that "This
Agreement applies only to all * * * employees * * * but excluding * * *
supervisors as defined in the Act." If Article II were susceptible only of a very
precise and narrow definition of "employee", the mere fact that other clauses
could be read consistently with a broader definition would not suffice for
arbitrability. We read certain clauses of the agreement, however, as arguably
pointing positively to a different and wider definition. Under these
circumstances, we deem it proper for an arbitrator to resolve the dispute. In
particular, the notion that seniority is inextricably intertwined with the right to
reinstatement provides, in our view, a basis for an interpretation favorable to
Burke of the word "employee" in the coverage clause. The argument would be
that under the agreement supervisors retain seniority accrued before their
promotions and that, therefore, they remain employees for the purpose of
exercising seniority rights and their right of reinstatement, like that of other
employees, is determined solely by their seniority. On this theory, arbitration of
the grievance is not plainly barred by the Article II inclusion of "employees"
and exclusion of "supervisors".
Support for the proposition that supervisors retain accrued seniority rights
could be drawn from two provisions of the agreement. In setting forth the
conditions under which employees lose seniority rights, Article XVIII does not
indicate that they are lost upon promotion to supervisory status. Additionally,
Article XXII(f) explicitly provides that an employee promoted to be the
"seventh foreman" (not Burke) retains his seniority rights as of the date of his
promotion. While one might argue that this states an exception to the general
rule rather than an illustration of it, the former interpretation is by no means
compelled by the language. The company concedes that arbitrators ordinarily
grant accrued seniority rights to foremen who are promoted from the bargaining
unit and then returned to it.
5
While the construction of the agreement which would confer employee status
for the purposes of Article II on one who seeks to exercise seniority rights is
weak, we cannot conclude that it is impossible. We note that, under settled law,
a laid-off employee is still an employee.2 Burke is arguably in a status akin to,
if somewhat different from, that of a laid-off employee. He is willing to work
though not now working and arguably possesses certain rights which have
accrued to him, qua employee, under the collective bargaining agreement. This
position has been taken in several arbitrators' decisions which, while they deal
with different collective bargaining agreements and do not in any event bind us,
suggest that the mode of analysis is not inconceivable to those involved in
labor-management relations.3
To say that Burke may be an employee for the purpose of reinstatement is not
to conclude that he is entitled to reinstatement. To determine the merits of
Burke's claim, the arbitrator may look to the "law of the shop" and to the
negotiations which led to the present agreement as well as to the other
provisions of the agreement. These might include the management rights clause
(Article XIV), the union membership clause which requires that all employees
"including former supervisory personnel who have been demoted by the
Company into the bargaining unit" must join the union (Article IV(c)), and the
provision that the seventh foreman will, under certain circumstances, "revert to
his previous status".
The language of these provisions would seem to permit the "possible" inference
that demotion or reversion is automatic when a former production worker is
laid off or discharged as a supervisor. On the other hand, the arbitrator could
surely conclude that management has complete discretion over Burke's
rehiring. What is crucial here is simply that the agreement could be read as
entitling him to reinstatement. So reading the agreement, under the rigorous
standard of judicial restraint applicable to this field, we affirm the district
court's order to arbitrate.
Local 209, International Union of Electrical, Radio and Machine Workers,
AFL-CIO
See American Cyanamid Co., 19 N.L.R.B. 1026, 1033 (1940); Unit Cost
Corporation, 7 N.L.R.B. 129, 133 (1938)
Reynolds Metals Co., 55 Lab. Arb. 1011 (1970); Babcock and Wilcox Co., 48
Lab. Arb. 1234 (1967); F. H. Noble & Co., 28 Lab. Arb. 641 (1957)
