422 F.

2d 77
73 L.R.R.M. (BNA) 2244

ITT WORLD COMMUNICATIONS, INC., a Delaware

corporation,
Plaintiff-Appellant,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
and Local No.
1174, Communications Workers of America AFL-CIO,
and Local No. 1172, Communications
Workers of America, AFL-CIO,
Defendants-Appellees.
No. 189, Docket 33674.

United States Court of Appeals Second Circuit.

Argued Oct. 29, 1969.
Decided Jan. 19, 1970.

Alfred Giardino, New York City (Lorenz, Finn & Giardino, Charles M.
Mattingly, Jr., New York City, Seyfarth, Shaw, Fairweather & Geraldson,
Chicago, Ill., on the brief), for plaintiff-appellant.
H. Howard Ostrin, New York City (Cooper, Ostrin, DeVarco &
Ackerman, Ronald J. Brooks, Philip D. Tobin, David Kreitzman, New
York City, Kane & Koons, Charles V. Koons, Washington, D.C., on the
brief), for defendants-appellees.
Before LUMBARD, Chief Judge, and MEDINA and FEINBERG, Circuit
Judges.
FEINBERG, Circuit Judge:
This case poses the familiar problem of construing the arbitration
provisions of a labor agreement. Simply stated, the issue is whether the
parties agreed to arbitrate claims of contract violation brought by an
employer as well as those brought by a union. The employer is ITT World
Communications Inc.; the unions are Communications Workers of

America, AFL-CIO and two of its locals, hereafter referred to as the

'Union.' ITT appeals from an order of the United States District Court for
the Southern District of New York, Milton Pollack, J., which stayed ITT's
damage action against the Union pending arbitration. For reasons
indicated below, we affirm the order.

The facts giving rise to the dispute are relatively simple. ITT alleges that the
Union violated the 'no strike' provision of the collective bargaining agreement
in November 1968. Shortly thereafter, ITT brought suit in the district court
under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.
185. The complaint alleged breach of contract and sought $250,000 in damages.
The Union filed its answer denying the allegations. In March 1969, ITT moved
for summary judgment; the Union thereupon moved under 9 U.S.C. 3 for a stay
of the action pending arbitration of the dispute. The motions came on before
Judge Pollack, who held that the arbitration provisions of the agreement
covered the dispute and that the Union, by filing an answer in the law suit, did
not waive its right to compel arbitration.1

Article VI of the contract, which is titled 'Arbitration,' provides in pertinent part

as follows:

Section 1.

Any matters disputed or in disagreement, or the subject of any controversy

between the parties relating to and involving the interpretation, construction, or
application of the terms of this Agreement, which the parties cannot adjust
satisfactorily under the Grievance Procedure, may be submitted to arbitration
for final and binding determination. Section 2.

(a) Notification of intent to proceed to arbitration must be made within thirty

(30) calendar days after mailing to the Union, by registered mail, the
Company's answer in Step 3 of the Grievance Procedure, otherwise the
grievance shall be deemed to be settled. Section 3, Article V, to the contrary
notwithstanding only the Union shall have the right to invoke arbitration of
grievances processed in Article V.

(b) Within two (2) weeks (unless mutually extended) of notification, by either
party to the other, of intent to proceed to arbitration, either party may request
arbitration. Such arbitration shall be submitted to the Federal Mediation and
Conciliation Service (FMCS) * * *.

The provisions of Section 1 are couched in very broad terms which seem at first
blush to make arbitrable ITT's claim that the Union violated the contract. There
is unquestionably a basic dispute over whether the Union violated Article VII
of the agreement, which contains the 'no-strike' provision;2 moreover, that
dispute certainly involves the 'interpretation, construction, or application' of
Article VII. However, Section 1 of Article VI does also contain the phrase
'which the parties cannot adjust satisfactorily under the Grievance Procedure.'
ITT claims that this language is crucial because it 'interlinks' Article VI of the
contract with Article V, which is set forth in the margin.3 Since Article V
concededly only covers employee grievances, ITT argues that the provisions
for arbitration in Article VI must also be so construed. The Union retorts that
the phrase relied on by ITT is not a limiting one, but merely describes when a
claim is ready for arbitration. The Union points out that since an employer's
claim of contract violation obviously cannot be adjusted under the Article V
procedure, such a claim fits the Article VI description of 'matters disputed'
which are ripe for arbitration. The Union finds further support for its position
in Section 2(b) of Article VI, which explicitly recognizes that 'notification * * *
of intent to proceed to arbitration' may be sent 'by either party to the other' and
thereafter 'either party may request arbitration.'

These contending positions have brought forth further rebuttals and rejoinders
in the briefs. For example, under its theory that arbitration applies only to
employee grievances, ITT views its right to 'request arbitration' as merely a
protection against having an employee grievance hang unsettled over its head
indefinitely like a 'Sword of Damocles.' The Union characterizes that danger as
'fanciful.' The Union emphasizes that Articles V and VI are separate, with
distinct procedures and differing coverage; the latter includes employer claims,
while the former does not.

Both parties also rely on past practice. Thus, ITT says that it has never sought
to arbitrate an employer claim, that when it brought a similar damage action in
1965, the Union did not seek arbitration, and that a Union official warned
members during the 1968 strike that the walkout 'gives the company an
opportunity to go into Federal Court.' The Union rebuts with very recent actions
of ITT which it says show ITT recognition of the arbitrability of employer
claims.

10

Finally, both sides call our attention to analogous judicial decisions. ITT relies
most heavily on G. T. Schjeldahl Co., Packaging Machinery Division v. Local
1680, IAM, 393 F.2d 502 (1st Cir. 1968), and Boeing Co. v. International
Union, UAW, 370 F.2d 969 (3d Cir. 1967). The Union invokes the imposing
language of the Steelworkers' Trilogy4 and cites numerous cases for the

proposition that whether a union has violated a no-strike clause is an arbitrable

dispute under the contract, e.g., Drake Bakeries Inc. v. Local 50, American
Bakery Workers, 370 U.S. 254, 258, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962);
Signal-Stat Corp. v. Local 475, United Electrical Workers, 235 F.2d 298, 301
(2d Cir. 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428
(1957); and Local No. 463, United Papermakers and Paperworkers, AFL-CIO
v. Federal Paper Board Co., 239 F.Supp. 45 (D.Conn.1965).
11

From these volleys back and forth it appears to us that the Union has somewhat
the better of it. Judge Pollack noted that Section 2(a) of Article VI fixes one
time limit (30 days) for the Union to exercise 'its exclusive right to invoke
arbitration of employee grievances' and Section 2(b), which does not mention
employee grievances, fixes another period (two weeks) in which 'either party'
may act. We agree with the judge that this is significant and that if 'the
arbitration agreement was intended only to deal with employee oriented
disputes, there would seem to be no need for time limits imposed on the
employer within which to invoke arbitration.' In other words, we are not
persuaded by the 'Sword of Damocles' argument although the court in
Schjeldahl, supra, apparently was, to a modest extent.

12

As to the past practice relied on by ITT, the record indicates only one employer
claim prior to the 1968 controversy and, even as to that, the law suit was
withdrawn in less than a month. Considering the realities of collective
bargaining, that period of time was too short to label the Union's failure to
invoke arbitration a conclusive recognition that it could not; the one instance
cited is too meager to be considered as authoritative past practice.5 The Union's
past practice claim is that after settlement of the 1968 strike, ITT itself invoked
Article VI arbitration to confirm its right to discharge two employees. ITT says
this was an 'employee-oriented' grievance and that its action was meant to bring
matters to a head-- the 'Sword of Damocles' theory again. We also regard this
incident as not determinative. In short, we view the past practice in this case as
inconclusive, assuming it is entitled to any weight at all.

13

However, there is a much more important reason for affirming the judgment
below. The unequivocal command of the Supreme Court in United
Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at
582-583, 80 S.Ct. at 1353 (1960), was that:

14

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.

15

We certainly cannot say 'with positive assurance' that Article VI 'is not
susceptible of an interpretation that covers' employer, as well as employee,
claims of contract violation. In addition to what we have already noted, we
point out that the parties elsewhere in the contract showed that they knew how
to clearly exclude a subject from arbitration when they so desired.6 Had the
parties wanted to do the same with claims of violation of the 'no-strike' clause,
they could easily have been equally specific. The importance of clear
exclusionary language to negate a presumption of arbitrability of a dispute
about a no-strike clause was emphasized by the Supreme Court in Drake
Bakeries, supra, 370 U.S. at 258-259, 82 S.Ct. at 1349 (1962):

16

The company earnestly contends that the parties cannot have intended to
arbitrate so fundamental a matter as a union strike in breach of contract, and
that only an express inclusion of a damage claim by the employer would suffice
to require arbitration. But it appears more reasonable to us to expect such a
matter, if it is indeed so fundamental and so basic to the company under the
contract, to have been excluded from the comprehensive language of Article V
if the parties so intended.

17

The combination of a broad arbitration clause and vague or no exclusionary

language has usually, since the Trilogy, led to arbitration. See International
Union of Electrical, Radio and Machine Workers v. General Electric Co., 407
F.2d 253, 257 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23
L.Ed.2d 217 (1969). In short, ITT's arguments at most raise a doubt whether
the arbitration clause covers the dispute, but we are instructed to resolve that
doubt 'in favor of coverage.' Doing so, we are required to affirm. However, it
should be clearly understood that this disposition by no means condones Union
misconduct, if that is what occurred, in this sensitive industry. As the Supreme
Court said in Drake Bakeries, supra, 370 U.S. at 266, 82 S.Ct. at 1353:

18

If the union did strike in violation of the contract, the company is entitled to its
damages; by staying this action, pending arbitration, we have no intention of
depriving it of those damages. We simply remit the company to the forum it
agreed to use for processing its strike damage claims.

19

The Union has suggested that Schjeldahl, supra, and Boeing, supra, both relied
on by ITT, are distinguishable on their facts. As to the latter decision, that may
be true, since the arbitration clause there did not say that 'either party' could
request arbitration,7 but we do not rest upon that.8 For our decision, we rely on
the reasons already set forth above. See also Local 463, United Papermakers
and Paperworkers, AFL-CIO v. Federal Paper Board Co., supra (company,
rather than union, successfully sought arbitration of violation of nostrike

clause); Fifth Avenue Coach Lines, Inc. v. Transport Workers, Local 100, 235
F.Supp. 842 (S.D.N.Y.1964).
20

ITT also contends that the Union waived its right to arbitrate by filing an
answer in the ITT damage action and by a four-month delay in seeking
arbitration. However, it is well settled in this circuit that neither would
constitute a waiver of the right to arbitrate in the absence of prejudice to the
opposing party. Carcich v. Rederi A/B Nordie, 389 F.2d 692 (2d Cir. 1968).
ITT claims that the rule in Carich is inapplicable because the dispute there
arose from a commercial contract, not a collective bargaining agreement, and
that any delay in a tense labor situation is by its nature prejudicial. While the
argument is ingenious, we believe that the Carcich rule applies to labor as well
as commercial disputes. The district court judge correctly found that ITT made
no showing of prejudice resulting from the delay.

21

Accordingly, the judgment of the district court is affirmed.9

LUMBARD, Chief Judge (dissenting):

22

I dissent.

23

I am convinced that ITT's contentions about the interrelationship between the

grievance procedure set forth in article V and the arbitration provisions of
article VI are correct. Thus, I would reverse Judge Pollack's order staying ITT's
damage action under section 301 of the Labor Management Relations Act of
1947, 29 U.S.C. 185.

24

It seems to me that the result which my brothers reach ignores the plain
meaning of section 1 of article VI, which states that 'Any matters disputed * * *
which the parties cannot adjust satisfactorily under the Grievance Procedure,
may be submitted to arbitration for final and binding determination.' I would
not hold this phrase to be 'vague' exclusionary language; rather, it limits
arbitrable matters to those disputes which have first passed through the
grievance machinery of article V, which the majority describes as 'concededly
only cover(ing) employee grievances.' Since a violation of the no-strike clause
is outside the grievance procedure's scope, neither ITT nor the union could seek
arbitration. For the reasons set forth in greater detail below, Chief Judge
Aldrich's opinion for a unanimous court in G. T. Schjeldahl Co., Packaging
Machinery Div'n v. Local Lodge 1968, Int. Assoc. of Machinists, 393 F.2d 502
(1st Cir. 1968), is directly in point and should, on the strength of its reasoning,
control the outcome of this appeal.

25

As did the First Circuit, I recognize the strong policy favoring labor arbitration
enunciated in the Steelworkers' Trilogy, relied on by the majority. However, the
applicable Supreme Court decisions also impose upon us a duty to determine
what it was that the parties agreed to arbitrate. As Mr. Justice White stated in
Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8
L.Ed.2d 462 (1967):

26

'Under our decisions, whether or not the company was bound to arbitrate, as
well as what issues it must arbitrate, is a matter to be determined by the Court
on the basis of the contract entered into by the parties. 'The Congress * * * 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.' United
Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80
S.Ct. 1347, 1353, 4 L.Ed.2d 1409.'

27

I fear that this stricture has been violated in the present case. Looking at the
complete procedure for dispute resolution provided in article V, and article VI,
sections 1 and 2, and at the past practice of the parties to the agreement, I
conclude that violation of the no-strike clause was not arbitrable.

28

I agree that ITT can invoke arbitration. I do not agree, however, that it can do
so with regard to any matters or disputes arising under the contract. Judge
Pollack and the majority believe that 'if the arbitration agreement was intended
to deal only with employee-oriented disputes, there would be no need for time
limits imposed on the employer within which to invoke arbitration.' From this,
the majority apparently concludes that either party can invoke arbitration at any
time regarding any matter. The way in which sections 2(a) and 2(b) are
structured convinces me that ITT and the union can only take to arbitration
those matters which have been through the grievance procedure.

29

Sections 2(a) and (b) of article 6 provide:

30

'(a) Notification of intent to proceed to arbitration must be made within thirty

(30) calendar days after mailing to the Union, by Registered mail, the
Company's answer in Step 3 of the Grievance Procedure, otherwise the
grievance shall be deemed to be settled. Section 3, Article V, to the contrary
notwithstanding only the Union shall have the right to invoke arbitration of
grievances processed in Article V.

31

'(b) Within two (2) weeks (unless mutually extended) of notification, by either
party to the other, of intent to proceed to arbitration, either party may request
arbitration. Such arbitration shall be submitted to the Federal Mediation and
Conciliation Service (FMCS). * * *'

32

Invoking arbitration under these provisions is, as ITT contends, a two-step

procedure. Section 2(a) of Article VI requires the union to furnish the employer
with a 'notification of intent to proceed to arbitration' within 30 days after ITT
mails the union its answer in the final step of the article V grievance procedure.
That notification, however, does not bring about arbitration. After the
notification, section 2(b) of Article VI provides that 'Within two (2) weeks
(unless mutually extended) of notification, by either party to the other, of intent
to proceed to arbitration, either party may request arbitration.' Thus, the twoweek period for request by either party for arbitration follows the 30-day period
for notification. The union argues that section 2(b) permits (either party to give
notification of intent to proceed to arbitration.' This is correct, but only to the
extent that either party can request arbitration of disputes that have passed
through the grievance machinery. For section 2(b), rather than conferring an
independent right to arbitration, is entirely compatible with the contractual
scheme for arbitration of disputes after grievance proceedings have concluded,
as set forth in sections 1 and 2(a) of article 6. Nothing said in section 2(a)
prevents ITT from giving notification of intent to proceed to arbitration after a
grievance has moved through the three steps of the grievance procedure. The
first sentence of section 2(a), although it does not say 'either party,' does not
limit the giving of a notification of intent to the union. The second sentence,
which refers to section 3 of article 5, only excludes employees from invoking
arbitration of grievances.1

33

Moreover, I think that it is perfectly reasonable that the employer might want to
reserve a right to give notice of intent to proceed with arbitration after a
grievance has passed through the grievance machinery of article V. This right
could be important in some instances. Under the grievance provisions, an
employee can process a grievance without union representation, and ITT is
obligated to give notice of such claims to the union. The union, however, may
choose not to intervene, and such a decision might be directly contrary to the
wishes of most of its membership. In such a situation, with an obvious split
between the union leadership and the rank-and-file, ITT might well want to go
to impartial arbitration in the interests of labor peace, even after it had filed its
answer in the final step of the grievance procedure. Section 2(a) prohibits the
employee from doing this,2 but section 2(b) allows the employer to do it. Going
back to section 2(a), the employer must also act within the 30-day limit set for
notification; if he does not, the grievance is deemed settled. Assuming the

employer notified the union of its intent to proceed to arbitration within the 30day period, the two-week provision in section 2(b) is also available to the
union-- just as it is to the employer-- to permit it to avoid the 'Sword of
Damocles.' See Schjeldahl, supra, 393 F.2d at 504. Thus, the two-week limit
does serve an independent function.
34

I believe that the 'past practice' adverted to by the majority supports my

interpretation that only those matters which have first passed through the
grievance machinery are arbitrable. Even if it be conceded that the contract
before us is ambiguous on its face-- which I do not concede-- I feel that we
must attach weight to the practical construction of the contract by those who
are parties to it. The Supreme Court stated in United Steelworkers of America
v. Warrior & Gulf Nav. Co., supra, at 582-583, 80 S.Ct. at 1353, that an

35

'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.'

36

It seems to me that this directive is not intended to permit the district courts or
the courts of appeals to limit their examination of the meaning of arbitration
clauses to such an extent that the past practice becomes irrelevant when the
exact meaning of the agreement is thought to be unclear. See generally,
Schulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999
(1955).

37

Thus, with respect to past practice, ITT points out that no employer claim has
ever been arbitrated under this or preceding agreements. Moreover, ITT
brought a similar lawsuit for damages in 1965, and the union did not respond by
seeking a stay pending arbitration. The majority states that the 1965 lawsuit
was withdrawn in less than a month, and that such a short time period available
for response means that this past experience must be ignored. While I might
agree if that was all there was before us, I cannot ignore the union's course of
action in the present controversy. ITT filed its complaint on November 12,
1968, and the union's answer was filed on January 2, 1969. It is conceded that
this answer contained no claim or defense that the issue was arbitrable. In fact,
the union made no such claim until much later. When ITT moved for summary
judgment on March 13, 1969, the union's response was a motion, filed March
17, 1969, seeking a stay pending arbitration. The union asserts that their right to
arbitrate is clear under the contract. If it is clear, it seems to me that it should be
promptly asserted whenever the company proceeds to federal court. While I
agree with the majority that there was no waiver as a matter of law, it does

appear highly relevant that this claim was not made until more than four
months after ITT's complaint was filed. The claim of arbitrability has all the
trappings of a pure afterthought based on a strained reading of the contract.
38

The statement by a union official to the effect that the illegal strike gave the
company a right to go into federal court, referred to by the majority in footnote
5 as 'not too significant,' cannot be totally disregarded. Given the union's course
of conduct in the present controversy, it tends to support my conclusion that the
application for a stay was merely an afterthought.

39

Finally, as to the union's argument that ITT itself invoked article VI with regard
to a dispute over the discharge of two employees whom it regarded as
instigators of the illegal strike, I find this past practice claim totally untenable.
The union's point is that ITT invoked article VI arbitration although no article
V procedure had preceded it, thus undercutting its position that the two articles
are tied together. I think not, for the memorandum of agreement between ITT
and the union settling the 1968 strike in effect waives the grievance procedure
which of course would otherwise have prevailed.3 Moreover, the fact that the
parties drew up a special settlement agreement in a situation where the nostrike
clause was breached seems to me to undercut the union's view that disputes
arising out of such a breach should be handled under the ordinary disputeresolution provisions of the contract.

40

I would reverse the other of the district court and permit ITT to prosecute its
suit in the district court.

The judge also held that this disposition rendered moot ITT's motion for
summary judgment

This provides:
The Company agrees that during the life of this Agreement there shall be no
lockouts, and the Union agrees that during the life of this Agreement there shall
be no strikes, sitdowns, slowdowns, walkouts or stoppage of work, or impeding
the conducting of operations of the Company for any reason whatsoever.

Grievance Procedure
Section 1.
If an employee shall have a grievance it must be presented in Step 1 of the

Grievance Procedure within two weeks of the occurrence of the grievance

except that:
(a) grievances concerning wages may be taken up within six months of the
occurrence of such grievance, and
(b) grievances concerning seniority may be taken up at any time.
Section 2.
The grievance shall be taken up in the following manner:
Step 1. The employee, or the shop committeeman, or the employee and the
shop committeeman may present the grievance to the employee's supervisor.
The supervisor shall give his answer to the grievance within two working days
after the grievance has been presented.
Step 2. (a) Failing a satisfactory answer in Step 1, the grievance may be
presented verbally to the superintendent, or the station manager, or the
department head or the appropriate designee of any of the above Company
representatives as the case may be. An answer in writing or verbally shall be
given by the Company representative either at the meeting or within three
working days following the meeting. Grievances not taken up in this Step 2(a)
within one week of receipt of the answer in Step 1 shall be deemed to be settled.
(b) Failing a satisfactory settlement in (a) above, the grievance may be
presented again in Step 2 but in writing only. The Company shall give its
answer, also in writing, within one week after the grievance has been presented
in this Step 2(b). In the event the grievance is not taken up in Step 2(b) within
one week following receipt of the Company's answer in Step 2(a), the grievance
shall be deemed to be settled. Grievances in this Step 2(a) and (b) shall be
presented at meetings between the appropriate Company representative and the
Union Grievance Committee. Such meetings shall not take place more than
once per week and shall be scheduled, in advance, for a time mutually
satisfactory to the Company representative and the Union Grievance
Committee.
Step 3. Failing a satisfactory settlement in Step 2, the grievance may be
presented, in writing only, to the Director of Industrial Relations or his
designee. Grievances not taken up in this Step 3 within two weeks from the
date of receipt by the Union of the Company's answer in Step 2 above shall be
deemed to be settled. An answer shall be given in writing by the Company to
the Union within two weeks from the date of the presentation of the grievance
by the Union Grievance Committee in the manner herein provided. Grievances

shall be presented in this Step 3 at meetings between the Company

representative and the Union Grievance Committee. Such meetings shall be
arranged for the mutual convenience of the Company and the Union as to time
and place. Step 3 Meetings shall take place not later than four weeks from the
date the Union appealed the grievance to the Step 3.
Grievances presented in writing in Step 2 and Step 3 shall be on a form which
has been agreed upon between the parties. The form is designed so that the
Company's answer will be given on it for Step 2 and Step 3. The Union's
statements of the grievance shall contain the essential facts of the grievance and
shall specify any alleged violation of the Agreement. This statement shall also
contain the Union's proposed remedy.
Section 3.
Notwithstanding the above, it is expressly understood that any employee has
the right to process a grievance through the three steps of the Grievance
Procedure herein, without Union representation. The Company agrees to notify
the Union of the existence of any grievance filed by an individual employee
under this section when such grievance reaches Step 2 and Step 3 in the
Grievance Procedure, and also of the time the grievance is to be discussed with
the employee.
Section 4.
In the event the Company fails to give its answer to grievances within the times
specified in each step of the Grievance Procedure herein, the Union shall have
the right to proceed to the next step in this Grievance Procedure after the
expiration of such specified times. This shall also be applicable to grievances in
Step 3 of the Grievance Procedure in the event the Union elects to proceed to
Arbitration under Article VI.
4

United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct.
1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior &
Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80
S.Ct. 1358, 4 L.Ed.2d 1424 (1960)

The contemporaneous letter from a Union official to its members stating that
the 1968 walkout 'gives the Company an opportunity to go into Federal Court'
is not very significant. The issue before us is whether ITT has the right to stay
there, a proposition with which the letter, whatever its weight, does not deal

E.g., in Article XI, Section 3, which deals with training programs, the contract

provides:
When a specific training program is needed by the Company, the matter will be
discussed with the Union. The Company and the Union will endeavor to agree
upon the following details concerning such training program:
(a) The length of the training period required to qualify employees for
permanent full-time assignment to the job;
(b) The amount of full-time instruction and the amount of an-the-job training;
(c) The trainee or apprentice wage scale.
In the event no agreement can be reached in a reasonable time, the Company,
nevertheless, shall have the right to institute the specific training program and
the Union shall be entitled to process a grievance through the Grievance
Procedure on any of the above details that may be in dispute. Nothing in this
section shall be subject to arbitration except disputes under Section 3(c) herein.
7

It should also be noted that Boeing did not discuss or even cite Yale & Towne
Mfg. Co. v. Local 1717, IAM, 299 F.2d 882 (3d Cir. 1962), an earlier decision
in the same circuit which pointed the other way

As to Schjeldahl, the asserted and perhaps overly technical 'distinction' is that

the grievance and arbitration provisions there were in the same article and there
were no other specific exclusions from arbitration, as there are in this case

Although it is thus unnecessary to deal with ITT's appeal from denial of its
motion for summary judgment, we note that we would have no jurisdiction
over that appeal in any event. Alart Associates, Inc. v. Aptaker, 402 F.2d 779
(2d Cir. 1968)

Article 5, section 3 of the collective bargaining agreement provides:

Notwithstanding the above, it is expressly understood that any employee has
the right to process a grievance through the three steps of the Grievance
Procedure herein, without Union representation. The Company agrees to notify
the Union of the existence of any grievance filed by an individual employee
under this section when such grievance reaches Step 2 and Step 3 in the
Grievance Procedure, and also of the time the grievance is to be discussed with
the employee.

See note 1, supra, and accompanying text

This memorandum agreement is set forth in full, but the paragraphs to which
the text refers are paragraphs 2 and 3
'SUFFOLK COUNTY DEPARTMENT OF LABOR

OLD INDIAN HEAD ROAD, COMMACK, N.Y. 11725 LOU V. TEMPERA

COMMISSIONER
543-6000 Nov. 11, 1969 (correct date is 1968)
Memorandum of Agreement by and between ITT World Communication Co.
and CWA, AFL-CIO
It is mutually agreed as follows:

The picket lines at all of the Company's facilities shall be discontinued and
employees shall return to work immediately. Simultaneously with the lifting of
the picket line and the return to work of employees, the Company shall
commence negotiations with the Union on a list of 14 complaints or issues
raised by Local 1174

Within 14 days the Company may propose disciplinary action against

employees for activity-- connected with the walkout

The above proposed discharge action shall be submitted to an arbitrator selected

by both parties the Union and the Company. No discharge shall be instituted
unless the Company's clarges are sustained by the Arbitrator. If charges are not
sustained the proposed discharge shall be dropped

Regarding the 14 issues of complaints mentioned in I above it is agreed that

any of such issues not resolved satisfactorily which are clearly arbitrable under
the Labor Contract the Union shall have the right to proceed to arbitration in
the manner provided in said Labor Contract. Any other of said issues about
which the Union and the Company cannot agree as to their arbitrability under
the Labor Contract the Union shall have the right to submit the question of
arbitrability to an arbitrator. In the event the arbitrator finds that the disputes are
arbitrable the Company agrees to arbitrate the merits of such disputes
For ITT World Communications
WILSON MCMAKIN MICHAEL F. GAMBELLO
For Communications Workers of America

AFL/CIO
CHARLES MCDONALD
For Local 1174 CWA AFL/CIO
MICHAEL MARINO
For Suffolk County Labor Dept. Witness'
GEORGE MEYER