Communication Workers v. American Telephone & Telegraph Co.

COWEN, Circuit Judge,

concurring in part and dissenting in part.

I concur with the majority’s dismissal of the appeal at 90-1950 for lack of jurisdiction. However, I respectfully dissent from its denial of the American Telephone and Telegraph Company’s (“AT & T”) petition for a writ of mandamus. The district court blatantly disregarded the plain language of the collective bargaining agreement between AT & T and the Communication Workers of America (“CWA”) and ignored *214 twenty-eight years of bargaining history, choosing instead to rewrite the agreement to its own liking. Judicial overreaching of this magnitude cannot be countenanced. Provided the negotiations were fair and the agreements legal, it is the responsibility of the federal courts to give effect to the bargain struck between employers and unions. Since the district court failed to fulfill this responsibility, the writ requested by AT & T should issue. Only then would justice be served.

I.

The issuance of a writ of mandamus is committed to the sound discretion of the court. In re Sharon Steel Corp., 918 F.2d 434, 436 (3d Cir.1990). To invoke this exercise of judicial power, the party seeking the writ must first prove that its right to the writ is “clear and indisputable” and that it has no other means to attain the desired relief. Id. A writ of mandamus is appropriate when used to confine an inferior court to a lawful exercise of its prescribed jurisdiction, or to compel a court to exercise jurisdiction when it is so required. Id.

Even if the court below commits a clear error of law and the aggrieved party cannot obtain adequate relief absent a writ, the writ will only issue in “exceptional circumstances.” Id. It has often been said that the use of an extraordinary writ is to be discouraged because it is “contrary to the common law policy of avoiding piecemeal appellate review of cases pending in courts of original jurisdiction. The policy is of great importance in preserving judicial efficiency.” Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir.1988). With these principles in mind, I conclude that in this instance a writ of mandamus is an appropriate remedy.

II.

A. The Business Units Grievances

At the center of this matter is a complaint filed by the CWA alleging that AT & T violated an agreement on subcontracting. Two bargaining units were allegedly covered by the agreement: the Business Units unit (“Business Units”) and the Material Management Service unit (“MMS”). In ruling on AT & T’s subsequent motion for summary judgment, the district court held that it had jurisdiction over the Business Units subcontracting grievances, but not over the MMS grievances.

AT & T has demonstrated that the district court’s assertion of jurisdiction over the Business Units grievances was a clear error of law, and that traditional remedies for this error are inadequate. The Business Units collective bargaining agreement stated in Article 9 that the grievance procedure is the “exclusive forum” for resolving disputes where arbitration and mediation do not apply. Moreover, Article 9 provided that neither “the Company nor the Union ... will attempt by means other than the grievance, arbitration, and/or mediation procedures to bring about the resolution of any issue_” Article 30 of the agreement explicitly excluded subcontracting grievances from arbitration, as did the Carroll-Livingston letter. Mediation is permitted under Article 11 only if it follows arbitration.

It plainly follows from these provisions that the parties intended the grievance procedure to be the only forum available for the CWA’s subcontracting claims. Notwithstanding the obvious meaning of the collective bargaining agreement, the district court found the “most remote ambiguity” to exist, and on that basis, justified its determination that a federal court was an appropriate forum for the grievances. It is true that there is a presumption in labor cases favoring access to a judicial forum. Groves v. Ring Screw Works, Ferndale Fastener Div., — U.S. -, 111 S.Ct. 498, 502 , 112 L.Ed.2d 508 (1990). It is also true that clauses limiting such access are strictly construed. Id. Ill S.Ct. at 503. But the “presumption favoring access to a judicial forum is overcome whenever the parties have agreed upon a different method for the adjustment of their disputes.” Id., 111 S.Ct. at 502 .

Beyond any doubt, the parties in this case agreed on a non-judicial method for resolving their subcontracting disputes, do *215 ing so in precise language which vividly expressed that intent. According to the express terms of the contract, subcontracting disputes were not arbitrable, and where arbitration was inapplicable, the grievance procedure was the “exclusive” forum for addressing the problem. Indeed, Article 9 prohibited the parties to the agreement from pursuing the issue by means other than the grievance procedure. Even the “most remote ambiguity” cannot be read into the agreement. As such, the decision to assert jurisdiction over the Business Units agreements was clear error.

Not only does the district court’s decision to assert jurisdiction constitute clear error, but its flouting of federal labor policies so damages the bargaining relationship between AT & T and the CWA that mandamus provides the only adequate remedy. The district court’s discovery of a “remote ambiguity” in the collective bargaining agreement was little more than an ill-disguised attempt to rewrite the collective bargaining agreement. In effect, the district court nullified Article 9 and inserted terms into the agreement more to its liking. This contravenes the federal labor policy requiring courts to affirm the bargain reached by the parties. See, e.g., Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 616-17 , 106 S.Ct. 1395, 1399-400 , 89 L.Ed.2d 616 (1986).

Enforcement of the parties’ bargain is very important to the continued success of collective bargaining. Collective bargaining is predicated upon the idea that a party giving something up will get something else of subjectively equal value in return. See id. For example, when the CWA bargained away its right to litigate subcontracting grievances, it presumably received concessions from AT & T. This kind of give-and-take only works if the accord reached by the parties is given full effect. But in this case, the district court has given back to the CWA what it gave away in the first place, without mandating that the CWA return the benefit of its bargain. When it passed the Taft-Hartley Act, Congress noted that “[i]f unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations.” S.Rep. No. 105, 80th Cong., 1st Sess., p. 16 (1947). The effect of the district court’s decision is to allow the CWA to break its collective bargaining agreement with impunity. Certainly, this is not consistent with the goals of collective bargaining.

Moreover, by perverting the collective bargaining process, the district court has injured AT & T’s ability to negotiate with the CWA, since AT & T must now assume that hard-fought bargaining gains will have to be re-captured in high cost litigations, or lost altogether. Indeed, the whole collective bargaining process is dealt a blow because neither party can assume with any degree of certainty that the district court will not interfere with the agreement reached. Bargaining sessions will be conducted in an atmosphere of mutual suspicion, which can only serve to inhibit negotiations. Even when the district court’s error is rectified on appeal, the damage to the bargaining relationship between AT & T and the CWA will continue. Given the capriciousness of the district court’s error, its disregard for the policies underlying federal labor law, and the decision’s potentially chilling effect on collective bargaining between AT & T and the CWA, I conclude that only mandamus provides an adequate remedy.

In short, the district court clearly erred by assuming jurisdiction over a dispute which the parties had intended to be resolved by non-judicial means. Moreover, the damage done to the collective bargaining process cannot be repaired on appeal. Where an error in interpreting a collective bargaining agreement is so glaring, we must step in.

B. The MMS Grievances

With respect to the MMS grievances, the district court held that the MMS grievances were arbitrable and subject to an exhaustion requirement. Therefore, it refused to exercise jurisdiction over AT & T’s motion for summary judgment. AT & T meets the threshold requirements for the issuance of a writ of mandamus in this instance, too.

*216 The district court’s holding that the MMS grievances are arbitrable is clearly wrong. Recently, we held that when construing an agreement to arbitrate, “arbitration should be compelled unless it can be said with ‘positive assurance’ that the agreement to arbitrate does not cover the dispute.” PaineWebber Inc. v. Hartmann, 921 F.2d 507, 512 (3d Cir.1990). In determining what constitutes “positive assurance,” we noted that “a compelling case for nonar-bitrability should not be trumped by a flicker of interpretive doubt.” Id. at 513 . See United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574, 582-83, 584-85 , 80 S.Ct. 1347, 1352-53, 1353-54 , 4 L.Ed.2d 1409 (1960). AT & T presents so compelling a case for the nonarbitrability of subcontracting disputes that not even a flicker of doubt exists.

Unlike the Business Units contract, the MMS collective bargaining agreement was silent on the issue of subcontracting. 1 In particular, the agreement did not expressly bar the arbitration of such disputes. However, twenty-eight years of bargaining history make it readily apparent that subcontracting disputes are not subject to arbitration. Morton Bahr, the International President of the CWA, testified that his union has requested arbitration for subcontracting disputes, but for twenty-eight years, AT & T successfully refused to accommodate those demands. Reflecting AT & T’s tenacious defense of its position is the Carroll-Livingston letter, which succinctly stated that subcontracting disputes were not arbitrable: the Bahr-Williams letter covering subcontracting “is not to be subject to the arbitration provisions of any of those collective bargaining agreements.” 2 Indeed, the CWA admitted in its complaint that “the parties agree that a violation of the Bahr-Williams letter agreement is not subject to arbitration under any of the parties’ collective bargaining agreements.” The intent of the parties cannot be more clearly stated. 3

Since subcontracting grievances were not arbitrable, and since, in contrast to the Business Units agreement, there was no clause in the contract limiting the CWA’s access to a judicial forum, the district court had jurisdiction over the matter. But yet, it refused to entertain AT & T’s motion for summary judgment. This is the kind of error mandamus was intended to correct.

Additionally, AT & T has no adequate remedy for the injury resulting from the district court’s misinterpretation of the MMS collective bargaining agreement. As it did with the Business Units agreement, the district court refused to pay any heed to the parties’ bargain, despite being required to do so. With the stroke of a pen, the district court erased twenty-eight years of bargaining history and imposed its own contract upon the parties. In that new contract, items which both parties agreed were not subject to arbitration became ar-bitrable. District courts cannot be allowed to arbitrarily strike provisions from collective bargaining agreements solely because they would not have included those provisions had they been at the negotiating table. Decision-making of this sort brings such mischief to the collective bargaining *217 process that an ordinary appeal proves largely useless.

Furthermore, the district court ran afoul of the federal policy that arbitration is a contractual matter which cannot be judicially compelled. AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 648 , 106 S.Ct. 1415, 1418 , 89 L.Ed.2d 648 (1986). The resulting injury to AT & T cannot be downplayed. As we noted in PaineWebber:

“In light of this policy, we think it obvious'that the harm to a party would be per se irreparable if a court were to abdicate its responsibility to determine the scope of an arbitrator’s jurisdiction and instead, were to compel the party, who has not agreed to do so, to submit to an arbitrator’s own determination of authority.”

PaineWebber v. Hartmann, 921 F.2d at 515 . Given the serious, “irreparable,” nature of the damage done to the parties’ arbitration bargain and federal arbitration policy, mandamus surfaces as the only adequate remedy.

To summarize, the district court committed clear error by refusing to exercise jurisdiction over AT & T’s motion for summary judgment. So destructive is the district court’s error to the collective bargaining relationship between the parties and to our system of arbitration that only a writ of mandamus would salve the injury suffered by AT & T. The prerequisites for issuing a writ of mandamus in this case are therefore satisfied with respect to both the Business Units and MMS grievances.

III.

Because AT & T has demonstrated that its right to a writ of mandamus is clear and indisputable, and that mandamus provides its only adequate means of relief, we have the power to issue the writ. Nevertheless, the exercise of that power is left to our discretion. In re Sharon Steel Corp., 918 F.2d at 436 . A couple reasons indicate that we should exercise our power.

First, as outlined above, important labor policies are at stake. This is not an ordinary labor case, as the CWA claimed during oral argument. Rather, it represents judicial overreaching of breathtaking proportions. The district court has run roughshod over twenty-eight years of bargaining history and collective bargaining agreements that could not have been drafted (and presumably negotiated) much more carefully. To allow its decision to stand would do a considerable disservice to some of the most basic principles underlying the law of labor relations.

Second, granting AT & T’s mandamus petition would promote “judicial efficiency and orderly procedure.” Lusardi v. Lechner, 855 F.2d at 1069 . Traditionally, writs are issued sparingly because they tend to promote piecemeal litigation. Id. But in this instance, mandamus would expedite matters and in fact, would avoid some litigation altogether.

For example, the district court’s determination that it has jurisdiction over the Business Units grievances will almost surely result in litigation between the parties and subsequent appeals. Should we issue a writ of mandamus, this litigation would be avoided altogether, since the grievance procedure would be the only forum for resolving the dispute. Similarly, the probable result of the district court’s decision on the arbitrability of the MMS grievances are suits compelling arbitration, arbitration itself, and finally, judicial review of that arbitration. A writ would limit the parties to a judicial resolution on the merits. Thus, the majority’s refusal to issue a writ of mandamus constitutes a considerable waste of resources.

Given the above considerations, I would grant AT & T’s petition for a writ of mandamus, ordering the district court to grant summary judgment to AT & T on the Business Units grievances and to decide AT & T’s summary judgment motion on the MMS grievances.

. In fact, the 1986 national agreement between AT & T and the CWA provided that subcontracting language would only be added to collective bargaining agreements between AT & T and bargaining units nor formerly part of Western Electric, Inc. MMS was a former unit of Western Electric.

. The Carroll-Livingston letter was a side letter drafted in response to the Bahr-Williams side letter and signed by the parties’ chief negotiators: the CWA’s John Carroll and AT & T’s John Livingston.

. After ignoring twenty-eight years of bargaining history and the Carroll-Livingston letter, the district court construed Article 18 of the MMS agreement to apply to subcontracting. This is a tortured reading of that provision; Article 18 applies by its terms only to layoffs. Once again, the district court substituted its interpretation of the contract for that of parties. No clearer evidence of this overreaching exists than the fact that neither party argued before the district court that subcontracting disputes were arbitra-ble under the collective bargaining agreement. The CWA relied solely on the Bahr-Williams letter. When both parties to a contract admit that the contract does not provide for arbitration, it mystifies me how a district court could find that the contract nonetheless does provide for arbitration.