The F & M Schaefer Brewing Co. v. Local 49, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America

HAYS, Circuit Judge

(dissenting):

I would affirm the decision of the district court.

Nothing could be clearer than that the issue of arbitrability is to be determined, not by the arbitrator, but by the court.

“The Congress, however, 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.” 1

“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 *857 the Court on the basis of the contract entered into by the parties.” 2

“The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede a judicial determination that the collective bargaining agreement does in fact create such a duty.” 3

It is difficult for me to believe that in deciding the issue of arbitrability the court is not called upon to exercise the same type of judicial function that is involved in any task of construing a contract. There is nothing about an arbitration provision in a collective agreement which should cause a court to abdicate its ordinary responsibility for analysis and interpretation. The position adopted by the majority seems to me to amount to such judicial abdication. The court appears to hold that if a party to a collective agreement claims that the arbitration provision covers a certain subject the court cannot examine the collective agreement to see whether in fact it does so. In the present case the union claims that the recognition clause of the contract requires the arbitration of certain wage rates. If the majority felt free to use ordinary judicial skill in examining the recognition clause, they would find that it quite obviously does nothing of the kind, that it is nothing more than the usual recognition clause defining the bargaining unit.

Presumably the decision herein stands for the proposition that if the union makes its claim without stating that it is governed by the collective agreement (as it originally did in the present case) the court can decide that it is not, but that if the union asserts coverage, then, however obvious it is that there is no coverage, the court must hold the issue arbitrable. In the present case the union could just as well have relied on the bulletin board clause or the duration of agreement clause; the recognition clause is no more relevant to the union claim than are those two clauses. However bold the union’s impertinence, the court considers itself precluded by the fact that a claim is made from exercising its usual judicial powers.

This result is thought by the majority to be required by United Steelworkers v. American Manufacturing Co., where the Court said that “even frivolous claims” may be arbitrable. The distinction which the majority fails to draw is between a frivolous claim which clearly arises under the contract and is therefore arbitrable and a frivolous claim of arbitrability. 4

In a case like the present case the collective agreement might provide for fixing higher rates by arbitration for routes which are “markedly dissimilar from those for which rates are fixed herein.” The claim of dissimilarity might be frivolous but the claim would still be arbitrable. However, where, as here, there is nothing whatsoever in the collective agreement on which the claim can be based, the assertion of arbitrability is frivolous, and the court, upon so finding, should deny the motion to compel arbitration.

. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960).

. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 , 82 S.Ct. 1318, 1320 , 8 L.Ed.2d 462 (1962).

. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547 , 84 S.Ct. 909, 913 , 11 L.Ed.2d 898 (1964).

. “ [A] rbitration should be ordered in an action under section 301 whenever the claim might fairly be said to fall within the scope of the collective-bargaining agreement. If the latter contention be made but is patently frivolous, arbitration should be denied.” Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1516 (1959).