Yale & Towne Manufacturing Co. v. Local Lodge No. 1717, International Ass'n of Machinists

STALEY, Circuit Judge.

The narrow question on this appeal is whether an employer can bring an action for damages in a district court against a union for the alleged breach of a no-strike clause, or must the claim first be submitted to arbitration where the collective bargaining agreement contains an arbitration provision.

The Yale & Towne Manufacturing Company brought an action under § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), against Local Lodge 1717, International Association of Machinists (“union”), and its affiliate organizations, seeking damages for the alleged breach of a no-strike clause. The union filed a motion to stay the action pending arbitration of the company’s claim for damages. From a -denial of that motion, the union appealed.1

*883The union contends that under the collective bargaining agreement the parties intended to arbitrate the breach of any provision of the agreement, including the no-strike clause, and points to the arbitration provision whereby

“It is understood and agreed that either party may invoke the grievance procedure in the consideration of any difference between the Company and an employee or group of employees involving the interpretation or application of the provisions of this Agreement. Any such difference shall constitute a grievance and may be taken up in the manner hereinafter set forth. Questions involving general negotiations shall not be subject to grievance procedure.” 2

In International Telephone & Telegraph Corporation v. Local 400, Professional, Technical & Salaried Div., International Union of Electrical Workers, 286 F.2d 329, 330-331 (C.A.3, 1960), we said that

“ * * * the judicial function is narrowly circumscribed in cases such as this where the parties have agreed to submit to arbitration disputes arising under their collective bargaining agreement. That function is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is one governed by the agreement. A court cannot pass on the merits of the claim. That is the arbitrator’s function. Not only is the law clear, but its application to the controlling facts here is facilitated by the guidance contained in United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 584-585, 80 S.Ct. 1347, 1354, [4 L.Ed.2d 1409], where Justice Doqglas said: Tn the absence of anyXexpress provisions 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.’ ”

What we said there was based on three decisions handed down by the Supreme Court in I960,3 and is in accord with other recent decisions of this court.4 The company contends, however, that this proposition is not applicable here for two reasons. First, none of the cases involved breach of a no-strike clause, and secondly, the agreement to arbitrate is the quid pro quo for the union’s promise not to strike, and the union cannot, therefore, after going out on strike, insist that the company’s claim be submitted to arbitration.

There is divided authority among the-courts that have considered the latter-contention. Decisions of the United States Court of Appeals for the Second Circuit and several district court decisions support the union’s position.5 Oth*884er decisions have held that the dispute is not arbitrable.6 We think, however, that the 1960 decisions of the Supreme Court make it clear that the alleged strike gave rise to a “difference” between the company and the union which on its face is governed by the collective bargaining agreement.

The arbitrability of a difference depends on the particular provisions of the agreement. It is a matter of contract and what the parties intended. The arbitration provision involved here is a broad one, requiring that all differences between the company and the union be arbitrated provided only that they involve an interpretation and application of the agreement. The arbitration machinery is not limited to any particular dispute or disputes, nor is there any limitation imposed on the power of the arbitrator to make an appropriate award. The company has not called our attention to any provision in the agreement specifically excluding the difference from arbitration. The exclusion clause is vague and general, providing only that “questions involving general negotiations shall not be subject to grievance procedure.” A claim for damages arising out of an alleged breach of a no-strike clause is not such a question, and certainly the clause does not constitute forceful evidence of an intention not to arbitrate the difference.

The union filed an answer in the district court wherein it asserted that the strike was not authorized. The only obligation imposed on the union where a strike occurs in violation of the agreement was to immediately issue instructions to the employees to return to work. The union is not under an absolute duty to prevent a strike, and the mere fact that one takes place does not necessarily make it liable to the company. It may be that the union did notify the employees in a manner contemplated by or at least one that satisfies the requirements of the agreement, or, on the other hand, factors may exist that excused it from discharging even that limited responsibility. It has also been pointed out that it may be necessary to determine whether the company, in light of the record, deliberately provoked the alleged strike. These are questions which, under the circumstances, involve the merits of the controversy, and may best be answered by examining the total employer-employee relationship as manifested through the collective bargaining agreement. In this relationship we may also find an answer to the company’s contention that the strike constituted a material breach of the agreement, thereby excusing it from proceeding to arbitrate. That is made clear by what the Court said in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 579, 80 S.Ct. at 1351: “The collective agreement covers the whole employment relationship. It calls into being a new common law—the common law of a particular industry or of a particular plant.”

As the union points out in its brief, the question here is not merely to determine whether a strike took place. Resolution of that question may well raise collateral problems involving past practices and recognized responsibilities of the parties insofar as a work stoppage is concerned. That, in turn, may require *885an examination of the bargaining history and grievance settlements, which admittedly we cannot do. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 283 F.2d 93 (C.A. 3, 1960). There is also the further fact that the strike involved an alleged refusal by the company to rerank certain jobs held by union members. In this regard, we would be called on to examine certain provisions of the agreement and the incentive rate system as well as the overall practice and understanding of the parties in settling disputes concerning so-called “tight” or “loose” rates.

The result reached here is supported by two decisions of this court. In International Molders Union v. Susquehanna Casting Co., supra, we held arbitrable the discharge of thirty employees because of their alleged breach of a no-strike clause. The company brought an action for damages because of an alleged breach of a no-strike clause in Tenney Engineering, Inc. v. United Electrical Workers of America, 207 F.2d 450 (C.A. 3, 1953). After holding that the United States Arbitration Act, 9 U.S.C. § 1 et seq., was applicable under the circumstances, we remanded in order to permit the district court to determine if the breach was arbitrable. Thereafter, the district court ordered arbitration. Tenney Engineering, Inc. v. United Electrical Workers of America, D.C., 174 F. Supp. 878 (1959).

The company cites a number of cases that are clearly inapposite. In Sinclair Refining Co. v. Atkinson, 290 F.2d 312 (C.A.7, 1961), cert. granted, December 11, 1961, 82 S.Ct. 378, 82 S.Ct. 376, the arbitration provision was a narrow one, being limited to differences “regarding wages, hours, or working conditions.” The same was true in International Union, United Furniture Workers of America v. Colonial Hardwood Flooring Co., 168 F.2d 33 (C.A.4, 1948), where arbitration was limited to “a grievance of any employee or a joint grievance of any group of employees, in connection with hours, or other conditions of employment.” 7 Here, of course, the arbitration clause was much broader. The collective bargaining agreement in Hoover Motor Express Co. v. Teamsters Local Union 327, 217 F.2d 49 (C.A.6, 1954), did not contain an arbitration clause. Under the arbitration provisions that were before the court in Vulcan-Cincinnati, Inc. v. United Steelworkers of America, 289 F.2d 103 (C.A.6, 1961); International Union, United Automobile Workers v. Benton Harbor Malleable Industries, 242 F.2d 536 (C.A.6), cert. denied, 355 U.S. 814, 75 S.Ct. 15, 2 L.Ed.2d 31 (1957); and Cuneo Press, Inc. v. Kokomo Paper Handlers’ Union 34, 235 F.2d 108 (C.A.7, 1956), only employees could file a grievance and invoke arbitration. Here, either the company or union may initiate arbitration. The only question before the court in Lodge 12, District 37, International Assn, of Machinists v. Cameron Iron Workers, Inc., 257 F.2d 467 (C.A.5), cert. denied, 358 U.S. 880, 79 S.Ct. 120, 3 L.Ed.2d 110 (1958), was whether the discharge of certain employees was arbitrable. In United Electrical Workers of America v. Miller Metal Products, Inc., 215 F.2d 221 (C.A.4, 1954), the court found that the United States Arbitration Act, 9 U.S.C. § 1 et seq., was inapplicable since the controversy arose out of a contract of employment and that it was without jurisdiction to order arbitration. Any discussion relating to the problem before us was, therefore, dictum. International Brotherhood of Teamsters, Local 25 v. W. L. Mead, Inc., 230 F.2d 576 (C.A.1, 1956), is no help, for the question involved here was not before the court nor was it discussed.

The judgment of the district court will be reversed with directions that defendant’s motion for a stay be granted.

. Jurisdiction is based on § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a). General Electric Co. v. Local 205, United Electrical Workers of America, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957).

. Article XXIV, Clause 24.0.

. 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 Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

. Harris Structural Steel Co. v. United Steelworkers of America, AFL-CIO, Local 3682, 298 F.2d 363 (C.A.3, 1962); Radio Corp. of America v. Association of Professional Engineering Personnel, 291 F.2d 105 (C.A.3, 1961); International Telephone & Telegraph Corp. v. Local 400, Professional, Technical and Salaried Div., International Union of Electrical Workers, 290 F.2d 581 (C.A.3, 1961); International Molders Union v. Susquehanna Casting Co., 283 F.2d 80-(C.A.3, 1960); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 283 F.2d 93 (C.A.3, 1960).

. Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 294 F.2d 399 (C.A.2, 1961), cert. granted Jan. 22,. 1962, 82 S.Ct. 840; Signal-Stat Corp. v. Local 475, United Electrical Workers, 235 F.2d 298 (C.A.2, 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d *8841428 (1957); Tenney Engineering Co. v. Electrical Workers, Local 437, 174 F.Supp. 878 (D.C.N.J.1959); Armstrong-Norwalk Rubber Corp. v. Local 283, United Rubber Workers, 167 P.Supp. 817 (D.Conn.1958); Pennsylvania Greyhound Lines v. Amalgamated Assn, of Street Employees, 98 F.Supp. 789 (W.D. Pa.1951), reversed on other grounds, 193 F.2d 327 (C.A.3, 1952); Lewittes & Sons v. United Furniture Workers of America, 95 F.Supp. 851 (S.D.N.Y.1951). See Hudson Wholesale Grocery Co. v. Allied Trades Council, 3 N.J.Super. 327, 65 A.2d 557 (1949).

. Structural Steel & Ornamental Iron Ass’n of New Jersey, Inc. v. Shopmens Local Union 545, 172 P.Supp. 354 (D. N.J.1959); Harria Hub Bed &, Spring Co. v. United Electrical Workers of America, 121 P.Supp. 40 (M.D.Pa.1954); Metal Polishers International Union Local 90 v. Rubin, 85 F.Supp. 363 (E.D. Pa.1949).

. The provisions of the arbitration clause can be found in Lewittes & Sons v. United Furniture Workers of America, 95 F.Supp. 851, 853 (S.D.N.Y.1951).