Local 12298, District 50, United Mine Workers v. Bridgeport Gas Co.

J. JOSEPH SMITH, Circuit Judge.

Local 12298, District 50, United Mine Workers of America, and District 50 United Mine Workers of America appeal from an order of the United States District Court for the District of Connecticut, William H. Timbers, District Judge, •denying their petition to compel arbitration under a collective bargaining agreement and, sua sponte, granting summary judgment for the Bridgeport Gas Company. We hold the dispute one subject to arbitration, and reverse the judgment.

The Bridgeport Gas Company determined that there was insufficient work to justify filling a position left vacant by an employee’s retirement and, therefore, •declined to post notices of a vacancy. The union claims that the company’s conduct violated Sections 7 and 8 of Article II1 of the collective bargaining agreement then in force. Section 7 provides that the company will post notices of vacancies and will consider written applications of employees for the position, while Section 8 provides that the union will be notified before a position is permanently filled. The company contends that these sections are rendered inapplicable by Section 5 of Article I, 2 which vests the exclusive right to relieve employees from duty for lack of work in the company. According to the company, there is no vacancy because it has determined that the job retired from was unnecessary and eliminated it.

The collective agreement contains a multi-step grievance procedure under which all disputes between the union and the company as to the meaning and application of the collective agreement with respect to rates of pay, wages, hours of employment, and other conditions of employment shall terminate by arbitration if not resolved by an earlier step in the outlined procedure.3 The contract also *383contains a “no strike” provision,4 the quid pro quo for the arbitration clause.

In Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the Supreme Court held that § 301(a) of the Labor Management Relations Act, 61 Stat. 156 (1947), 29 U.S.C. § 185(a) (1958), permitted the federal courts to enforce grievance arbitration provisions in collective agreements, and that the federal courts were to be guided by the national labor policy of promoting industrial stabilization through adherence to the terms of the collective bargaining agreement. Id. 353 U.S. at 455, 77 S.Ct. at 917, 1 L.Ed.2d 972. Three years later, in United Steelworkers of America, A.F.L.-C.I.O. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-1353, 4 L.Ed.2d 1409 (1960), the Supreme Court announced that “[t]o 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 did agree 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 of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”

Thus, the court’s role is confined to ascertaining whether the party seeking to compel arbitration is making a claim which on its face is covered by the language of the grievance arbitration clause. We hold that the broad language of this arbitration clause can fairly be interpreted to cover this dispute, particularly since any doubts are to be resolved in favor of arbitrability. The parties have agreed to submit to the arbitrator all unsettled grievances relating to the meaning and application of the collective agreement with respect to pay rates, wages, hours, and “other conditions of employment.” We think it clear that the posting of vacancies and the right of employees to apply to fill them can be encompassed within the term “conditions of employment.” Since the union contends that Sections 7 and 8 of Article II have been contravened by the company’s conduct, and the company contends that these sections are inapplicable, there is plainly a dispute about the meaning and application of the collective agreement with respect to a condition of employment.

One question remains. Did the language of Section 5 of Article I, a management functions clause, which provides in pertinent part that “the right to relieve employees from duty because of lack of work is vested exclusively in the Company * * exclude disputes about the existence of vacancies from those disputes which must be submitted to arbitration ? In order to exclude from arbitration a dispute which on its face appears to be encompassed by the arbitration clause, the collective agreement must contain a clear and unambiguous exclusionary clause or some other term “that indicates beyond peradventure of doubt that a grievance concerning a particular matter is not intended to be covered by the grievance and arbitration procedure set forth in the agreement.” Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., 298 F.2d 644, 646 (2 Cir. 1962). *384The management functions clause in this case says nothing about vacancies being-improper subjects for arbitration; it does not even say that relieving employees from duty for lack of work shall be excluded from arbitration. Even if ■one reads “exclusively” as evidencing an intention to qualify the arbitration ■clause, there is a difference between relieving a working employee from duty and refusing to fill a vacancy. It may be that the power to refuse to fill a vacancy can be implied from the power to relieve an employee from duty, but that is a question as to the merits of the grievance and must be left to the arbitrator. Moreover, the processing of even frivolous claims may have a therapeutic value in preserving industrial peace. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The party claiming exclusion has a heavy burden, Livingston v. John Wiley & Sons, Inc., 313 F.2d 52, 60 (2 Cir. 1963). Here the company has presented no “forceful evidence of a purpose to exclude the claim from arbitration,” and we decline 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 Steelworkers of America, A.F.L.-C.I.O. v. Warrior & Gulf Nav. Co., supra, 363 U.S. at 585; 80 S.Ct. at 1354, 4 L.Ed.2d 1409.

The District Court’s judgment is reversed, and the case is remanded with instructions to grant the plaintiff’s petition to compel arbitration.

. “Section 7. Notice of Vacancies

“The Company will post notices of vacancies in positions in the occupations and classifications of employees represented by the Union and it will consider applications of employees for such positions if they are presented in writing, including a statement of the qualifications of the applicant within the time limits for posting as set forth below.
■“Section 8. Duration of Vacancy Postings
“Notice of the vacancy will be posted for three (3) working days in the department in which the vacancy occurs. If the vacancy is not filled at the departmental level, then the notice of the vacancy will be posted plantwide for five (5) working days.
“Before a position is permanently filled, the Union will be notified and if an employee’s qualifications are questioned, he may have them passed upon at a meeting between the Union and the Company.
“In any event, the vacancy shall bo filled within a maximum of fifteen (15) working days after the expiration of the final posting of any job(s) which may be filled because of the selection of the bidder on the first posting.”

. “Section 5. Management Functions

“A. The direction of the employed personnel, including the right to hire, to suspend or discharge for proper cause, to transfer, promote or demote, and the right to relieve employees from duty because of lack of work is vested exclusively in the Company, provided that this will not be used for the purpose of discrimination against any employee.
“B. The right to determine who are to hold supervisory foremanship, or other supervisory positions, is vested exclusively in the Company.”

. “ARTICLE XIII

“Grievance Procedure
“Should any differences arise between the Company and the Union covered by this agreement as to the meaning and application of this agreement, with respect to rates of pay, wages, hours of employment and other conditions of employment, the procedure of settlement shall be in the following manner:
ií* *1» ^ V
“Section 64. Arbitration
“Step 3 — If the grievance is not adjusted in Step 2, the Union may request arbitration by sending written notice to *383Monsignor Joseph F. Donnelly and the Company within ten (10) working days after receipt of the Step 2 answer. Monsignor Donnelly shall act as arbitrator * * * The arbitrator’s award shall be final and binding, but the arbitrator shall have no power to add to, subtract from, or modify in any way, the specific terms and provisions of the agreement.”

. “ARTICLE III

“Strikes and Lockouts
“Section 15. No Strikes and Lockouts
“The Company agrees that during the life of this agreement there will be no lockouts and the Union agrees there will be nc strikes, slowdowns or stoppages of work.”