Petition — Texas Steel Co. v. International Ass'n of Machinists & Aerospace Workers

Supreme Court, U. S.

FiLkEOD

ner 12 1976

a MICHAEL ROOAK, JR., CLERK |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

TEXAS STEEL COMPANY, Petitioner

v.

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, DISTRICT 776

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

DENNING SCHATTMAN

MICHAEL D. SCHATTMAN

503 Burk Burnett Building

Fort Worth, Texas 6102

HAROLD E. MUELLER

Burk Burnett Building

Fort Worth, Texas 76102

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Fort Worth Brief Printing Co., 10 & Jennings Street Phone 882-4070

INDEX

Opinions Below .. ain

Jurisdiction

Questions Presented ...........2..02....---eeeneeneeeoeee

Statutory Provisions Involved ...............

Statement of the Case ......................

Reasons for Granting the Writ

Conclusion

Appendix A (Opinion of Arbitrator)

Appendix B (Opinion of District Court)

Appendix C (Ozinion of Court of Appeals)

Appendix D (Contract Language at Issue)

ii

TABLE OF CASES

Amanda Bent Bolt Company v. International Union,

United Automobile, Aerospace, Agricultural

Implement Workers of America, Local 1549

ee Se ee a pinicblisiiiainiimaaiiadl 8,9

Atkinson v. Sinclair Refining Co.,

SO a 10, 11

Local 342, United Automobile, Aerospace &

Agricultural Implement Workers of America,

AFL-CIO v. T.R.W., Inc., 402 F.2d 727

SI TINY tecisiclbdnsetashaleciiniaieehi ih nihil aia LS 8

Magnavox Company of Tennessee v. International

Union of Electrical, Radio, and Machine Workers,

AFL-CIO, 410 F.2d 388 (6 Cir. 1969) 220002. 8

Timken Company v. Local Union No. 1123,

United Steelworkers of America, AFL-CIO,

ee ee IG TI ciicthceiitelatiitetealdebainstenhisinsetesinrnncicteieantini 9

Truck Drivers & Helpers Union, Local 784 v.

Ulry-Talbert Company, 330 F.2d 562 (8 Cir. 1964) ............ 8

United Steel Workers v. Enterprise Wheel & Car

Corporation, 363 U.S. 593 (1960) 2.0.02. 6, 7, 10n

United Steelworkers of America v. Warrior &

Gulf Navigation Company, 363 U.S. 574 (1960).......... 11, lln

OTHER AUTHORITY

Morris, The Developing Labor Law (1971) ......... 10

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

TEXAS STEEL COMPANY, Petitioner

v.

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, DISTRICT 776

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

The petitioner, Texas Steel Company, prays that a

writ of certiorari issue to review the opinion and judg-

ment of the United States Court of Appeals for the

Fifth Circuit rendered in these proceedings on Sep-

tember 17, 1976.

OPINIONS BELOW

This dispute began in grievance and arbitration.

The opinion of the arbitrator is reproduced at Appen-

dix A, infra, pp. A-1 to A-28. The opinion of the

United States District Court for the Northern Dis-

trict of Texas is unreported and is reproduced in

Appendix B, infra, pp. A-29 to A-31. The opinion of

the Court of Appeals is reported at 538 F.2d 1116. It

is reproduced as Appendix C, infra, pp. A-32 to A-44.

2

The contract language at issue is reproduced as Ap-

pendix D, infra, pp. A-45 to A-47.

JURISDICTION

The opinion and judgment of the Court of Appeals

for the Fifth Circuit was entered on September 17,

1976. This petition for certiorari was filed less than

90 days from that date. The jurisdiction of this Court

is invoked under 28 U.S.C. Sec. 1254 (1).

QUESTIONS PRESENTED

The International Association of Machinists and

Aerospace Workers, District 776 brought suit in fed-

eral district court against Texas Steel Company to

enforce an arbitration award. The district court

granted the plaintiff-union’s motion for summary

judgment and ordered the award enforced. On appeal

the Court of Appeals affirmed. The questions pre-

sented for review are:

1. Whether the Court of Appeals for the Fifth

Circuit erred in holding that, as a matter of law,

the decision of the arbitrator was not arbitrary

and capricious where the arbitrator’s decision

itself shows in his own words that he violated

his duty as an arbitrator and went beyond simple

interpretation of the collective bargaining agree-

ment and entered into the actual management of

the plant.

2. Whether the Court of Appeals for the Fifth

Circuit erred in holding that on motion for sum-

mary judgment the district court was correct in

applying the test of “arguable” or “presumptive”

arbitrability to determine whether the dispute

was in fact arbitrable and thus placing the bur-

den of proof on the non-movant.

3. Whether the Court of Appeals for the Fifth

Circuit erred on the cross-appeal in holding that

Petitioner’s challenge to the arbitration award

was without justification and remanding to the

district court for a finding on justification and

entry of attorneys fees, where the district court

ordered each party to bear their own costs and

where the Petitioner brought forth good faith

arguments presenting genuine questions of fed-

eral labor law policy concerning the latitude and

limitations to be given arbitrators and the use

of the test of “arguable” arbitrability.

STATUTORY PROVISIONS INVOLVED

Section 185(a), Title 29, United States Code:

“Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this Act, or between any such labor

organizations, may be brought in any district

court of the United States having jurisdiction of

the parties, without respect to the amount in

controversy or without regard to the citizenship

of the parties.

STATEMENT OF THE CASE

The facts relevant to consideration of the questions

presented are uncontroverted and may be summarized

as follows:

Texas Steel Company is a corporation located in

Fort Worth, Texas, where it engages in the manufac-

4d

ture of steel and the fabrication of steel products in

interstate commerce. For purposes of collective bar-

gaining, its employees are represented by District

Lodge 776, International Association of Machinists

and Aerospace Workers. Following the arbitration of

a grievance, the Company refused to abide by the

award and the Union filed suit in federal district

court to enforce the award. Jurisdiction was based

upon 28 U.S.C. Sec. 1331 and 29 U.S.C. Sec. 185. The

district court granted summary judgment on the

pleadings to the Union and this was affirmed on

appeal.

The underlying industrial dispute, which was the

subject of arbitration, involved A. J. Hurry, an em-

ployee of Texas Steel Company, who was the loadout

leadman in the mill shipping yard of the Company.

He complained that the Company was paying him less

than the men whom he led contrary to the collective

agreement and filed a grievance to that effect. As the

leadman of the ground crew, Mr. Hurry was paid the

contractual lead differential over these men. However,

he felt that he was entitled to receive the lead differ-

ential over the rate paid the crane operators.

The differential rate for leadmen under the con-

tract was $.20 per hour over the rate of the highest

man led. The loadout men “A” were paid $2.95 per

hour. The loadout leadman (Hurry) was paid $3.15

per hour. The crane operator was paid $3.38 per hour.

See, Appendix D, infra, p. A-47.

The loadout ground crew consists of the loadout

man “A” and three helpers. There are two such crews

5

each shift, one for each of two cranes. The loadout

leadman assists the crews in their work and coordi-

nates the work of the two crews. That work consists

of unloading the mill of its product and loading trucks

in the mill shipping yard. The leadman (Hurry) in-

dicates to the loadout crews the nature and quantity

of material to be moved, and the crews then place the

r.aterial in position for the crane. ‘

Prior to 1970 the two loadout men coordinated their

crews’ movements with each other. That year the

Company established a non-supervisory position of

Loadout Leadman. The new classification was estab-

lished under the 1970-71 contract with the Union and

continued unchanged into the 1971-72 contract. Hurry

filed his grievance in January 1972. The grievance

went to arbitration and the impartial member of the

panel submitted an award on December 9, 1972. Fol-

lowing the hearing of additional testimony in July,

1973, the impartial member with the concurrence of

the Union member, reissued the award of December

9, 1972, with a supplemental award appended to it

on November 24, 1973. The Company member dis-

sented. See, Appendix A, infra, pp. A-1 to A-28. The

Company refused to comply with the award and this

litigation ensued.

6

REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with the principles gov-

erning an arbitrator’s duty set forth by this Court in

United Steel Workers v. Enterprise Wheel & Car

Corporation.

Beginning with United Steel Workers v. Enterprise

Wheel & Car Corporation, 363 U.S. 593 (1960), fed-

eral courts have consistently stated that an arbitra-

tor’s role is confined to interpretation and application

of a collective bargaining contract but that his deci-

sion will be disturbed and enforcement of his award

refused only if his words manifest an infidelity to his

duty to interpret and apply the contract. Although the

lower federal courts repeat this rubric, it is rare

when they find such infidelity. In the Enterprise

Wheel case this Court held that a mere ambiguity in

an award is not such an infidelity.

The award of the arbitrator in this case does mani-

fest such an infidelity printed in black and white in

words chosen by the arbitrator. After reviewing the

arguments made by both sides concerning the func-

tion and duty of the loadout leadman the arbitrator

stated that “. .. each party can marshall impeccable

logic to support its case.” Appendix A, infra, p. A-6.

Having reached the conclusion that management had

made a proper decision committed to it under Article

III, Section 3, of the contract (Appendix D, infra,

p. A-45), the arbitrator went on in the very next para-

graph to state “It seems to the Arbitrator .. .” that

the Company had made a mistake in the way it runs

its plant and that in the interests of efficiency another

7

choice would have been better. This is the infidelity of

which the law speaks and the arbitrator’s own words

impugn his decision.

The decisions of the courts below fly in the face of

the arbitrator’s patent intrusion into the operation of

the plant and his departure from simple interpreta-

tion and application of the contract. Article III, Sec-

tion 3, of the contract gives the Company certain un-

fettered rights and certain rights which are subject

to limited review. (Appendix D, infra, p. A-45.) The

right “to create new and additional job classifications

for the jobs not already covered by provisions of this

Agreement” is a management right subject to limited

review through grievance and arbitration. However

under the contract language, the arbitrator is confined

to determining whether the position is new or already

covered. Instead of making this determination, the

arbitrator decided that the Company created the

wrong position and should have denominated the new

job as leadman of the crane operator and not leadman

of the loadout crew and paid him accordingly. This is

not a decision the arbitrator was empowered to make.

This is not a question of ambiguities. This arbitra-

tor has clearly and explicitly stated that the Company

has made an incorrect managerial decision. The Court

should grant certiorari in this case because it pre-

sents a clear opportunity to make practical applica-

tion of the language in Enterprise Wheel that the

arbitrator “does not sit to dispense his own brand of

industrial justice.” 363 U.S. at 597. It is appropriate

for this Court to elaborate the limitations placed on

8

arbitrators by Enterprise Wheel so that all can know

the outer limits of their authority.

2. The decision below conflicts with decisions in other

circuits limiting an arbitrator’s authority.

As pointed out above, the contract in this case gave

management the right to create new jobs so long as

the jobs were not already covered by the agreement

This is exactly like the Company’s authority to dis-

cipline or discharge for proper cause. The power lies

in the Company. It can be reviewed, but only to deter-

mine the existence of proper cause. The choice of dis-

cipline is not grist for the arbitrator’s mill. He can

only decide whether cause for discipline existed. If he

did) more than this his action would amount to a

modification of the collective agreement. Disciplinary

clauses have received this interpretation in Amanda

Bent Boi’ Company v. International Union, Uni-

ted Automobile, Aerospace, Agricultural Implement

Workers of America, Local 1549, 451 F.2d 1277 (6

Cir. 1971); Magnavox Co. of Tennessee v. Interna-

tional Union of Electrical, Radio, and Machine Work-

ers, AFL-CIO, 410 F.2d 388 (6 Cir. 1969) ; Local 342,

United Automobile, Aerospace & Agricultural Imple-

ment Workers of America, AFL-CIO v. T.R.W., Ine.

402 F.2d 727 (6 Cir. 1968); and Truck Drivers &

Helpers Union, Local 784 v. Ulry-Talbert Company,

330 F.2d 562 (8 Cir. 1964). In Amanda Bent Bolt,

supra, the appellate court held that an arbitrator’s

action in ordering the reinstatement with full seniority

of workers who had engaged in a wild cat strike was

contrary to the terms of the contract and beyond the

9

arbitrator’s authority, where under the contract he

had “no power to add to, subtract from or modify

any of the terms of this agreement.” 451 F.2d at

1280. A similar limitation on the arbitrator’s juris-

diction is involved in this case and, for the reasons

discussed, it should be given a like interpretation.

Likewise, in Timken Company v. Local Union No.

1123, Uniied Steelworkers of America, AFL-CIO, 482

F.2d 1012 (6 Cir. 1973), an arbitrator was prohihited

from modifying the collective bargaining con': act.

He was presented with a grievance of an em) yee

whom the employer classified as a “voluntary quit”

because he had been absent from work without au-

thorization for seven consecutive days. He had been

serving a jail sentence for traffic offenses. The arbi-

trator held the absence to be involuntary because the

employee had no control of the situation and also held

the employer to have discriminated between empl yees

absent due to illness and those absent due to imprison-

ment. He ordered reinstatement. The district court

refused enforcement of the award and the court of

appeals affirmed on the theory that the arbitrator

had exceeded his authority under the contract. He

could only determine if the absence was “unauthor-

ized”. He was not empowered to redefine “voluntary

quit” or to excuse absences. So it is here. The arbi-

trator cannot redefine or reclassify the “loadout lead-

man” to suit his own ideas on how to run a steel mill.

He could only determine if the loadout leadman held

a new job not previously subject to the agreement.

The court of appeals declined to follow the reasoning

of the Sixth and Eighth circuits in the discipline cases

10

and apply it to the parallel situation presented here.

The decision below conflicts with these decisions in

other circuits and should be reviewed by this Court

and reversed, because there is no good reason why a

clause empowering management to create jobs should

be given any different interpretation than a clause em-

powering management to discharge when the issue is

the latitude given an arbitrator to review these man-

agement decisions.

3. The decisions below use an incorrect test to deter-

mine arbitrability, a test which results on summary

judgment in the burden being placed upon the non-

movant and in the contract and the arbitrator’s

action being construed in the manner most favor-

able to the movant. This sets the summary judg-

ment procedure on its head and deprives the par-

ties of a judicial determination of substantive arbi-

trability.

The parties have bargained for the arbitrator’s de-

cision,’ but only on those matters which are subjected

to his review by the contract. The question of substan-

tive arbitrability in a suit under Section 301, NLRA,

28 U.S.C. Sec. 185, is for the courts. Atkinson v. Sin-

clair Refining Co., 370 U.S. 238, 241 (1962); Morris,

The Developing Labor Law, pp. 482-483 (1971).

When deciding this question following arbitration

the courts ought not to indulge in any presumptions

as they do when arbitration is sought in the first in-

stance. Different policies are involved. Where arbi-

1United Steelworkers of America v. Enterprise Wheel & Car Corp., 363

U.S. 593, 599 (1960).

11

tration is resisted federal law and policy favors arbi-

trations as a means of avoiding strikes.* Therefore,

disputes are presumed to be arbitrable and arbitra-

tion is ordered “unless it may be said with positive

assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute.’”

This policy does not have any application where the

parties arbitrate the matter in the first instance as

here. The dispute has gone through the process of

grievance and arbitration. The strike is avoided. Now

a party which recognized its obligation to arbitrate

even questionable matters looks to the courts to resolve

the question of substantive arbitrability.

Because of the presumptive arbitrability rule of

Warrior & Gulf the issue of real or substantive arbi-

trability cannot be raised without first exhausting the

remedy of arbitration. After ali, the result may favor

the doubtful party. But having complied with the law

and still being dissatisfied Texas Steel Company now

seeks a judicial determination of substantive arbitra-

bility as it is entitled to under Atkinson v. Sinclair

Refining Co., supra. Instead it is met with the appli-

cation of the test of presumptive arbitrability.

The parties have received the decision of the arbi-

trator. Now they are entitled to know if that decision

was warranted and further whether the arbitrator

exceeded his authority to interpret and apply the

contract.

2“The grievance procedure is, in other words, a part of the continuous

collective bargaining process. It, rather than a strike, is the terminal

point of a disagreement.” United Steelworkers of America v. Warrior &

Gulf Navigation Company, 363 U.S. 574, 581 (1960).

8Jd., at 582-583.

12

The policy giving rise to the test of presumptive

arbitrability no longer applies, but an even greater

wrong occurs by its use on summary judgment. In this

case the Union moved for summary judgment on the

pleadings. By using the presumptive arbitrability test

the district court construed the contract language and

the arbitrator’s actions in the light most favorable to

the movant, when they should be construed in the light

most favorable to the non-movant if the court is to

determine whether the movant Union is entitled to

judgment as a matter of law.

Viewed in the light most favorable to the Company,

the contract and the arbitrator’s award show that the

arbitrator exceeded his authority in deciding the dis-

pute in the manner chosen by him. He did not confine

his decision to whether the Company created a new

job or just dressed-up an old one as a subterfuge. He

did not confine himself to interpretation of the con-

tract, he exercised a management right and function

to set the classification for a new job. Given that in-

terpretation, the district court erred in granting sum-

mary judgment to the Union based upon a presump-

tion of arbitrability.*

It is a peculiar rule indeed, approved by the court

of appeals, which allows presumptions to support a

motion for summary judgment.

The decision of the court of appeals should be re-

‘It should be pointed out here, as it was to the court of appeals, that the

granting of summary judgment forestalled the Company from present-

ing a defense that the Union had ratified the Company’s determination

of the classification and pay of the leadman by agreeing to the 1971-72

contract.

13

viewed to determine whether the test of presumptive

arbitrability should be used where arbitration has

occurred, and to fix the standard on summary judg-

ment in suits to enforce arbitration awards.

4. The remand to the district court for a determination

of justification and the finding of attorney’s fees

was unwarranted under the circumstances of this

case.

Texas Steel Company does not quarrel with the

proposition that costs and attorney’s fees may be

awarded in a proper case for enforcement of an arbi-

tration award. However, this is not such a case.

In both the district and appellate courts, the Com-

pany has advanced reasons of law and policy based

on sound precedents why the arbitrator exceeded his

authority and why the district court erred in its ruling

given the procedural posture of the case. The district

court, although presented with the Union’s request for

attorney’s fees apparently found no basis in fact on

which to grant the relief. The Union requested no

finding on the issue of justification, and the district

court’s order on attorney’s fees is an implied finding

that the Company’s position while erroneous was not

devoid of justification. The issues raised on appeal

were complex enough that an appeal filed in January

of 1975 was not argued until April 6, 1976, and not

decided until September 17, 1976. Obviously part of

this delay was caused by the heavy docket of the Fifth

Circuit and the rightful preference given to criminal

appeals. However, the time spent on the case by the

14

parties and the courts is not attributable to specious

or frivolous arguments, but by a challenge based upon

conviction and supported by defensible analysis that

this arbitrator overstepped his bounds and that the

district court erred in granting summary judgment.

Texas Steel Company has tried to bring forth ques-

tions pertaining to the proper role of arbitrators under

the National Labor Relations Act. If it is wrong, then

so be it, but the positions are advanced sincerely and

not with a view towards wasting time and thwarting

the peaceful resolution of labor disputes. The district

court perceived this and acted within its sound dis-

cretion when it ruled on attorney’s fees. The court

of appeals should not have vacated that ruling.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

DENNING SCHATTMAN

MICHAEL D. SCHATTMAN

503 Burk Burnett Building

Fort Worth, Texas 76102

HAROLD E. MUELLER

Burk Burnett Building

Fort Worth, Texas 76102

A-1

APPENDIX “A”

ARBITRATION AWARD, SUPPLEMENTAL

ARBITRATION AWARD, AND

DISSENTING OPINION

In the matter of

THE TEXAS STEEL COMPANY

and

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE

WORKERS, Local No. 776

File No. 72A/6390

October 18, 1972

Fort Worth, Texas

Arbitration Panel:

Ralph C. Barnhart, Impartial] Member

Harold E. Mueller, For the Company

J. E. Floyd For the Union

ARBITRATION AWARD

On December 9, 1972, the impartial member of the

Arbitration Panel submitted the following as the pro-

posed award in the above-numbered arbitration, which

proposed award sets out the nature of the grievance

and the issue before the Arbitration Panel:

The grievance in this case complains that the Com-

pany is working a leadman, Mr. A. J. Hurry, at a lower

rate of pay than provided by the collective bargaining

agreement, Appendix A, pg. 43, of the Agreement

dated November 21, 1971. The provision is that:

A-2

“Leadman classification shall be at least $.20 above the

highest led classification rate. The Grievant, Mr.

Hurry, was made a Leadman on November 30, 1970,

in the load out crews in the Shipping Yard of the Com-

pany plant. The highest classification of those working

on the ground in the Shipping Yard is Loadout Man

“A” which was the classification in which Mr. Hurry

was working prior to his designation as leadman. The

Company has been paying Mr. Hurry $3.15 per hour or

20¢ per hour above the Loadout Man “A” contract

rate. Mr. Hurry’s complaint is that he is actually lead-

man for the entire loading crews which include also the

Crane Operators who man the overhead cranes in the

Shipping Yard. These operators have the classification

of “Crane Opr. “A.O.H.” with an hourly rate of $3.38.

Mr. Hurry claims that he should, under the provision

quoted, be paid $3.58 per hour, or 20¢ per hour over the

Crane Operator “A” rate of $3.38.

The Company disputes Grievant Hurry’s claim that

he is leadman for the Crane Operators in the Ship-

ping Yard and the issue before the panel is essentially

whether Grievant Hurry does in fact serve as leadman

to the Crane Operators as well as the ground crews.

It was Agreed at the hearing that a leadman at

Texas Steel Company is not a supervisor but is a work-

ing member of the work force. The Union does not

claim supervisory status for Mr. Hurry.

The Shipping Yard is an open area serviced by a

craneway 300 feet long. Two overhead cranes with a

span of 100 feet, operate on the craneway, each crane

operating independently of the other. At one end of the

A-3

Shipping Yard, product from the rolling mill is moved

by crane to storage bays or other areas and at the other

end the product is loaded by crane on trucks and cars.

A ground crew works with each crane, consisting of a

Loadout Man “A” and three helpers, with the leadman

working with both crews. The same pattern is followed

for two shifts, on the third or graveyard shift there are

two rather than three helpers for each crew. Each

crane operates with one operator so that eleven men

are working in the Shipping Yard on two shifts and

nine on the graveyard shift.

Before Mr. Hurry was made a leadman he was a

loadman “A” on one of the ground crews. The Execu-

tive Vice President of the Company, Mr. Will Wilson,

testified that it was decided to put a leadman on each

shift in the Shipping Yard because not only was the

work load increasing but it was anticipated that it

would increase further. The leadman was added “for

the purpose of looking after the Loadout Man “A” and

his helpers and to coordinate better the work Joad.”

Mr. Hurry testified that as leadman he gets his ord-

ers from supervision as to what is to be loaded out and

tells the loadout crew what to load on the trucks. Since

the trucks can be loaded only by use of the crane it is

equally necessary for him to give orders to the crane

operator. In other words, the ground crew and the

crane operator operate as a unit and the function of the

leadman applies to one as well as to the other. On the

mill end it is necessary to keep the product moved from

the mill as it comes from the mill in order to keep the

mill from shutting down. If necessary the leadman will

A4

order both cranes to the mill in order to move the pro-

duct accumulating from the mill. Again, it may be

necessary to move both cranes to the loading end if the

work demands. Mr. Hurry testified that as leadman he

has to keep abreast of the work and he alone is in a

position to place men and cranes where needed at any

given time to get the work done. He stated that he is

not a supervisor but he has been placed in the position

to exercise the responsibility of keeping the work mov-

ing and while he could call upon supervision to give the

specific orders he considers that supervision expects

him to perforni this function. In his words, ground

crews and crane operators work as units and he, as

leadman, cannot lead one part of this unit without

leading the other. Mr. Hurry testified that as leadman

he determines the course of operations during the day

for both ground crews and for the crane operators who

work with them. For example, when one crew goes to

lunch while the other crew may work and then the lat-

ter goes to eat when the former returns, he testified

that as leadman he makes the decisions as to such mat-

ters, that he might go to his supervisor but the super-

visor could hardly help him because he (Hurry) knows

the shape the work is in and the supervisor doesn’t so

that he alone is in a position to make a rational deci-

sion.

One of the crane operators, Mr. L. E. Ainsworth,

testified that as Crane Operator he looks to the lead-

man for directions as to his work, when he takes his

breaks, and on one occasion when the crews were

working on Saturday and an emergency required him

(the Crane Operator) to go home, there being no su-

A-5

pervisors in the office, he checked with Mr. Hurry

and “he let me go home.” It was agreed that the other

crane operator would testify to the same effect if called.

Mr. Wilson, for the Company, testified as noted

above, that the loadout leadman classification was set

up because of the increase of volume of work in the

yard. The position was set up “to lead the ground

crew and not to be a leadman over the crane opera-

tors.” He stated that the crane operators are the high-

est paid employees in the yard and perfectly capable

of making decisions of their own and that the work

they do and the directions they receive from members

of the ground crews are no different now than before

the loadout leadman’s position was created. According

to Mr. Wilson, the loadout leadman position position

is just an expansion of the job of the Loadout Man

“A” the leadman’s job “is really no more than to co-

ordinate two groups rather than having loadout men

“As” operate independently of each other.”

The Company reasons that the crane operators per-

form now as they did before the loadout leadmen posi-

tion was created and that no direction from the lead-

man as such is required. The Company sees the situa-

tion as one of “non-supervisory employees working to-

gether harmoniously to accomplish a common end.”

The Company emphasizes that the creation of a loadout

leadman position was a management function and

that in the exercise of that function the leadman’s

position was given no lead function with respect to

the crane operators. The Company loadout leadman is

part of the Loadout Man “A” classification still.

A-6

The Union position can be stated as one of viewing

the work of the loading crews as work of an integrated

team of ground crew and crane operator. Unless both

ground crew and crane operators work together,

neither can work at all. A leadman coordinating the

work of the two ground crews in the yard necessarily

coordinates the work of the crane operators inasmuch

as all of the work that is done is accomplished by the

crane moving and placing the steel product rigged by

the ground crews.

It is obvious that the resolution of the issue here is

not one that can come about through logical analysis

for each part can marshall impeccable logic to support

its case. The difference between the parties arises not

from faulty logic on the part of one or the other but

from the different points of view from which each

party sees the situation. The Company sees the lead-

man’s position as a management creation limited and

circumscribed by the intentions and will of its cre-

ator. In such light the leadman’s authority can rise

no higher than its source wills. Like an agent charged

by his principal] to buy a white horse, he can claim no

authority to buy one that is black. The Union from its

position sees the situation from a more functional or

pragmatic point of view. If the ground crew and the

crane operator cannot work without the other, i.e.

work essentially as a team composed of ground crew

plus a crane operator, a leadman coordinating the

work of two ground crews necessarily coordinates the

work of the crane operators also. One who drives a

team cannot drive the near horse without driving the

A-7

off horse also, not at all intending any comparison of

men to horses by this example.

It seems to the Arbitrator that when the Company

places a man in the shipping yard to coordinate the

work of the ground crews and expects the crane op-

erators, upon whom the ground crews are absolutely

dependent, to perform their part of the work without

attention to the coordinator, it places both coordinator

and crane operators in an impossible position. Inevi-

tably all will look to the leadman for guidance or no

coordination will result. Men in the shipping yard, on

the ground as well as above it in the crane cabs come

naturally to know their work and to go about their

tasks without constant supervision. Work doesn’t stop

when supervision or leadmen are not constantly at

hand but this can hardly mean that coordination does

not add to the work of the crews or that crane oper-

ators are not affected by it. I do not see how participa-

tion in coordination can be barred simply by admin-

istrative fiat that it doesn’t exist.

In my judgment the Union has made its case and

the grievance should be sustained.

Impartial Member of the Panel

December 9, 1972

A-8

In the matter of

THE TEXAS STEEL COMPANY

and

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

Local No. 776

File No. 72A/6390

October 18, 1972

Fort Worth, Texas

Arbitration Panel:

Ralph C. Barnhart, Impartial Member

Harold E. Mueller, For the Company

J. E. Floyd, For the Union

SUPPLEMENTAL ARBITRATION AWARD

On December 21, 1972, the Company member of the

Arbitration Panel wrote to the Imparital Member of

the Panel confirming a telephone request for an ex-

ecutive session. The Union member naturally felt that

no such session was necessary. I agreed to schedule an

executive session which was held in Fort Worth on

July 19, 1973. At this session it appeared that the

strong objection of the Company to the proposed draft

was that it in effect required the Company to create a

leadman over the crane operators against manage-

ment’s desire to do so. The Arbitration Panel clearly

has no authority to require the Company to do any-

thing it is not obligated to do under the collective bar-

gaining agreement. The problem, however, is not so

simply disposed of. The agreement does require the

Company to pay a leadman at least $.20 above the

highest led classification rate. (Page 41 of the 1971-

A-9

72 agreement). The leadman’s job in question was

created by the Company and the issue becomes one,

not of telling the Company what it must do, but of

determining as a matter of actual fact what it has

done. The Company is governed by the agreement, as

is the Union and as is the Arbitration Panel. The

question before the Panel, therefore, boils down to

whether the loadout leadman leads a crew solely of

men working on the ground or whether the crews in

the shipping yard actually include the operators of

the overhead cranes.

The Company placed great emphasis upon what it

asserted to be the fact that the relationship between

the crane operators and the ground crews had been

changed in no significant respect by the setting up of

the loadout leadman classification. In substance the

claim seemed to be that what the crane operators did

before they continued to do after unaffected by the

work of the leadman in coordinating the work on the

ground. In fairness, this argument seemed to indicate

somewhat closer inspection of this “before and after”

aspect of the leadman’s job and another hearing was

scheduled for this purpose. The hearing was held on

October 11, 1973, at the Company plant in Fort

Worth. A transcript was made and briefs filed.

While these additional proceedings have been time-

consuming it seems to the Impartial Member of the

Panel that they served to bring the parties to closer

grips with the substance of the issue— just whom

does the loadout leadman lead? The second hearing at

the plant made it clearer that the moving of the

Grievant, Mr. Hurry, from Loadout Man “A” to

A-10

Loadout Leadman was not a radical departure from

prior practice. Before Mr. Hurry was made a Loadout

Leadman he was a Loadout Man “A” in the loading

crew and the mill crew. As described by both manage-

ment witnesses and by Mr. Hurry, there was little

significant change in Mr. Hurry’s work at all, either

with respect to men on the ground or in the cranes.

Making him a Leadman was more a recognition of

the scope of his duties already being performed than

of the creation of new duties. Now, instead of having

to go to supervision as a Loadout Man “A” his now

status enabled him to perfom his lead work with

somewhat more assurance. He could now direct the

work and report his direction to his supervisor instead

of having first to seek his supervisor’s approval. But

if it can be said that becoming a leadman made no

difference in the work of the crane operators it can

equally be said that it made no difference in the work

of the ground crews. As Mr. Wicker testified, the

work of neither crane operator or ground crew

changed. The only difference was “Well, one extra

man.” (Transcript Pg. 41)

Testimony at this last hearing made it plain that

the work of the crane operators and the ground crews

is that of collaboration in a single endeavor — to move

steel from the mil] and from the yard to trucks and

cars. Neither can work separately, the ground crews

without the cranes can do nothing, the crane operators

without the ground crews would be useless. Not only

does the ground crew tell the crane operator what is

to be moved, the crew has to tell him what equipment

he needs. See page 56 of the Transcript in the second

A-11

hearing, describing the change of bows with respect to

which the crane operator must depend upon the ground

crew.

It is abundantly clear that the crane operators are

an inseparable part of the loadout crews in the ship-

ping yard and a Leadman with respect to part is un-

avoidably leadman of all.

The men who testified for Company and Union are

not neophytes. Mr. Wicker had worked in his position

for 35 years, Mr. Day had been his supervisor for 25

or 30 years, Mr. Hurry had been in the shipping yard

for 29 years. The operations under consideration here

were not new to them. They surely knew what they

were testifying about and none could very well mis-

state the facts in the presence of the others. Their

testimony was not in conflict.

In summary, the record shows that the work of the

shipping yard is carried on as a combined cooperative

integrated effort of the men on the ground and the

men in the cranes, so that when a leadman was given

the function of coordinating the work of the ground

crews he necessarily coordinated the work of all. A

leadman could scarcely coordinate a part without co-

ordinating the whole and the crane operators are as a

matter of inescapable fact a part of the whole.

The grievance is sustained.

/s/ Ralph C. Barnhart

Ralph C. Barnhart

Arbitrator

Mr. Mueller dissents.

Mr. Floyd concurs.

November 24, 1973

A-12

IN ARBITRATION

In the Matter of

TEXAS STEEL COMPANY,

—and—

AERONAUTICAL INDUSTRIAL DISTRICT

LODGE 776 — INTERNATIONAL ASSOCIA-

TION OF MACHINISTS & AEROSPACE

WORKERS, AFL-CIO

LOADOUT LEADMAN

GRIEVANCE

DISSENTING OPINION

OF COMPANY ARBITRATOR

In January, 1972, A. J. Hurry, a loadout leadman

in the mill shipping yard, initiated an individual

grievance signed by him based on the company’s

“working leadmen at lower rate of pay than highest

classification they lead” in which he requested as a

remedy “that the higher rates be paid to leadmen and

they be compensated for all monetary losses suffered”

(Joint Exhibit 2).

The loadout leadman’s classification was established

by the company in 1970, and the incumbents in that

position, including the grievant, were assigned to lead

and direct the work of the loadout ground crews, i.e.,

Loadout Men “A” and their helpers. These leadmen

were paid the stipulated contract differential over the

rate of the Loadout Man “A” —the highest paid

members of the ground crews. The new leadman clas-

sification was established under the 1970-71 contract

A-13

with the union. The instant grievance raised the con-

tention for the first time under the 1971-72 contract

that the loadout leadmen lead and direct the work of

the crane operators and, therefore, are entitled to be

paid at the differential based on the crane operator’s

rate of pay, which is substantially higher than that of

Loadout Men “A”. The matter was not the subject of

contract negotiations in 1971, out of which the 1971-

72 contract came.

ApplicalLie Contract Provisions

Pertinent provision of the 1970-71 and 1971-72

contracts are in all respects the same save the pay

differential for leadmen, which was increased from

15¢ to 20¢. The following are the provisions of the

1971-72 contract:

1. “Section 3. The management of the plant, the

selection of employees for supervisory or other

classifications not subject to this Agreement, the

determination of the products to be manufac-

tured, the location of Company plants, the sched-

ules of production, the methods, standards, proc-

esses and means of manufacturing is vested ex-

clusively in the Company.

“The Company shall have the right, subject to

other provisions of this Agreement and to the

grievance procedure hereof, to direct the working

forces, including but not limited to the right to

suspend, demote or discharge employees for prop-

er cause, to lay off for lack of work or other

proper reasons, to transfer employees from one

job to another and from one shift to another and

to change the classification of any employee when

such action is not inconsistent with the seniority

A-14

provisions hereof and to create new and addi-

tional job classi fications for jobs not already cov-

ered by the provisions of this Agreement.”

(Article III, Section 3, Jt. Ex. I, pp. 5-6, Em-

phasis added)

. “Article XII — Grievance Procedure

“Section 1. The term grievance means any dis-

pute between the Company and an employee, a

group of employees, or the Union concerning the

effect, interpretation, application, claim of breach

or violation of this Agreement.

“Section 2. All such grievances must be presented

im writing within ten (10) days following the

occurrence of the event giving rise to grievance,

except that an extension of an additional ten (10)

days will be granted for grievance pertaining to

wages only. * ** *”

“Section 11. The Arbitration Board shall have

full authority to decide the proper interpretation

and application of any of the provisions of this

Agreement, but shall not have the power to add

to, detract from, or change any of its provisions.”

(Jt. Ex. I, p. 15, Emphasis added)

. “Service and Supply

*_* *+ ££ & &

“Loadout Man ‘A’ 295

*- s+ &*& *¢+ © & &

“Crane Operator ‘A’ O.H.

*-_ * * * £ * *&

“Leadman classification shall be at least $.20

above highest lead classification rate.”

(Appendix “A”, Jt. Ex. I, p. 48)

A-15

Issue Raised by Grievance

The question to be decided here is whether or not

the company had the right and authority to create and

establish the job of loadout leadman and to limit the

content, duties, and responsibilities of such job and

the incumbents therein to leading and directing only

the work of the ground crews, i.e., Loadout Men “A”

and their helpers.

This issue was raised for the first time in January,

1972, notwithstanding the fact that since the incep-

tion of the Loadout Leadman classification in 1970,

the leadman differential has been applied to the Load-

out Man “A” rate.

The F ucts

The operation here involved embraces (1) the re-

moval of product from the rolling mill and the placing

of it in bays and other storage areas, and (2) the

loading of customers’ orders on trucks or other ve-

hicles (R. 11). The work is performed in an open area

sometimes referred to as the shipping yard which is

serviced by a hundred foot span craneway about 300

feet long (R. 71-72). Two separate cranes operate in-

dependently on the same craneway (R. 28).

Organizationally the area is under the Service and

Supply Superintendent B. C. Day (C. C. Day). Next

in supervisory rank is Supervisor Neil Wicker. Under

Wicker are Foreman Charlie Day on the day shift

and Foreman Otum (Odom) on the evening shift. The

shipping office is near the middle of the craneway (R.

72-74).

A-16

Prior to 1970, the personne] assigned to the loadout

function at the mill shipping yard consisted to a Load-

out Man “A” and three helpers for each crane on two

shifts, and on the third shift a Loadout Man “A” and

two or three helpers (R. 12-14). Two crane operators

were assigned for two shifts and one for the third

shift.

In 1970, Vice President Wilson decided that a non-

supervisory Loadout Leadman classification should be

established (R. 59). Considerations motivating his de-

termination were increased work loads and antici-

pated further increases. The leadman as a working

member of the loadout crew performs loadout work

and does some coordination of the whole ground crew

(R. 27, 50, 59-60). The Loadout Leadman was desig-

nated to lead the ground crew only. He was not to be a

leadman over the crane operators (R. 60). The crane

operator is the highest paid employee in the area and

is perfectly capable of making decisions of his own.

He works in conjunction with the ground crew helpers,

loadout men, and leadmen (R. 48, 60). The number of

men in the ground crew can vary, but the number of

crane men is set by the number of cranes operating

(R. 61).

The Loadout Leadman is an appointive job. Its in-

cumbent is selected by management, and the duties

and responsibilities of the assignment are outlined and

determined by management (R. 26). |

Prior to the designation vf Loadout Leadman in

1970, the company had the same two cranes which

were operated the same way as they are now oper-

A-17

ated, and the make-up of the loadout crews was the

same (R. 26, 29).

There has been no change in the duties, functions or

responsibilities of Loadout Leadmen since the incep-

tion of their classification (R. 63). In reality the Load-

out Leadman classification is an expansion of a loadout

man’s job to coordinate two ground crew groups

rather than to have two Loadout Man A’s operate

independently of each other (R. 63).

The Loadout Leadmen generally keep one ground

crew unloading the mill and the other loading trucks

(R. 19). When a truck comes in the Loadout Leadman

goes to the office for loading instructions from Super-

visors Wicker, Odom, or Day. He then tells the Loadout

Man “A” what to do, and most of the time he is able

to help the loadout crew finish the assignment (R. 20-

21). He also advises the crane operator where they are

going and how many bundles are to be loaded so the

crane operator ill know how to place them on the

truck (R. 21). The mill crane stays at the mill to keep

it unloaded unless there is slack time or a breakdown

in which event the mill crane may load trucks (R.

21).

The crane operator works for one loadout crew or

the other, and if he is not working for a loadout crew

he has nothing to do (R. 22). When the crane operator

completes an assignment he goes to a designated place

and waits for direction from a member of the loadout

crew (R. 22).

When Supervisor Wicker told Loadout Leadman

Hurry of his appointment as leadman, Wicker did not

A-18

tell Hurry that he was to lead and direct the crane

operators (R. 25).

The crane operators get signals from the entire

ground crew — helpers, loadout A’s, and leadmen.

The lowest classification can signal the crane operator

and tell him where to go, and what to carry and un-

load. They did this before the Loadout Leadman clas-

sification was created and they still do it (R. 30-31).

Giving signals to the crane operator is part of the

helper’s function (R. 37).

If the Loadout Man “A” at the mill gets behind now,

he goes to the Loadout Leadman for help. Prior to

1970, he went to the other Loadout Man “A” or to the

office (R. 32-33). However, a Loadout Man “A” can

still direct the “truck” crane to service a mill pile-up

(R. 31).

The Loadout Leadman does not do any different now

than a Loadout Man “A” did when A. J. Hurry was a

crane operator (R. 36). The duties and functions now

exercised by Loadout Leadmen are the same as those

formerly exercised by Loadout Man “A” and helpers

(R. 38). If the crane operator was led prior to the

creation of the Loadout Leadman classification, he

was led by the Loadout Man “A” and his helpers (R.

38). The mili crane operator knows where to go and

what to do (R. 39). When the Loadout Leadman is

at the mill the truck crane operator gets his instruc-

tions from the Loadout Man “A” and the helpers (R.

38). The only difference now as compared with pre-

1970 operations is that the Loadout Leadman does all

of the going to the office and getting of instructions

A-19

(R. 44). Except for going to the office the Loadout

Man “A”’’s job is unchanged (R. 44, 47). The func-

tions of the Loadout Leadman with respect to the crane

operator are the same as those the Loadout Man “A”

used to and still does perform (R. 47).

The working of overtime and the personnel to be

assigned overtime work are determined by Supervisors

Wicker or Day who inform the Loadout Leadman who

in turn tells the crew (R. 23, 41).

The crane operator takes his lunch break at the

same time as his ground crew, and if he needs to leave

the crane cab, he advises his ground crew so they will

know the crane is out of service (R. 19, 23, 33, 34,

35). Before the institution of the Loadout Leadman

classification the crane operator told Loadout Man

“A” when he wanted to leave the crane cab, and when

he did so it was simply the case of one non-supervisory

employee telling another that he was going to be away

from his work station (R. 33). Crane operators op-

erated the same way in years past as they do now (R.

46).

The crane operator operates within his own skill

and needs no direction concerning the operation of his

own crane (R. 8-9).

It was stipulated that Loadout Leadmen are not

supervisory employees.

In the mill shipping yard, the yard or overhead

crane operator and the loadout crew operate as a team

both in “unloading” the mill and in loading trucks and

other vehicles with the mill’s product for delivery to

A-20

customers. The crane operator and the loadout crew

are mutually interdependent. The crane operator is

confined to his crane cab high above ground level

where he operates the crane fore and aft on its way

as well as transversely on its beam. He raises, lowers,

and transports loads in response to hand and vocal

signals from any or all members of the loadout crew

(Helpers, Loadout Man “A”, and Loadout Leadmen).

The crane operator is competent within his own skill

to operate his crane and he needs no direction or in-

struction from the loadout or ground crew to operate

the crane. He is separately supervised. He operates

his crane as a service to the loadout crew and through

their signals coordinates his skill with their require-

ments.’ His distance from and inaccessibility to the

ground make it physically impractical for him to

select the material for loading, and to hook and unhook

it.

The loadout crew selects the material for loading as

determined by orders, hook it, designate the place for

transit, and unhook it at destination. They, however,

are incapable of transporting the material in effective

quantity. By harmonizing their efforts with those of

the crane operator the mill materials are effectively

handled.

Except for the creation of a Loadout Leadman clas-

sification to coordinate the loadout crews and to aug-

ment their staffing by an additional person, there has

been no change in the method of operation in the mill

shipping yard for many years. The Loadout Leadman

has no more authority or “lead” over the crane opera-

A-21

tors than did the Loadout Man “A” before the estab-

lishment of Loadout Leadmen. No contention has ever

been made that the Loadout Man “A” lead or directed

the crane operator.

The relationship between the crane operator and the

entire loadout crew is that of non-supervisory em-

ployees working together harmoniously to accomplish

a common end. There is no distinction in principle

between that of fellow members of a production line

in different departments and the relation of the crane

operators and the loadout crews.

There is not a fragment of evidence that any crane

operator has been “led or directed” by a Loadout Lead-

man. The grievant has offered as evidence the fact

that the crane operator has the same lunch and break

periods as the loadout crew assigned to his crane and

that the crane operator will advise a member of the

loadout crew if he has to leave the crane for a personal

reason, such as a headache or need for a restroom.

In view of the fact that loadout crew and the crane

operator are mutually interdependent in the perform-

ance of work it is only reasonable or practical that

they should eat and have their breaks at the same

time. This embraces no facet of leading and directing.

The notification by the crane operator to a member of

the loadout crew of his absence from the crane is an

act of simple courtesy and is nothing but “helping”

each other. It is not evidence of leading or directing

by the Loadout Leadman.

It is clearly evident that under the relevant collec-

tive agreement the institution of a leadman classifica-

A-22

tion and definition of its scope are unfettered manage-

ment functions. The uncontradicted substantial evi-

dence reveals that the Loadout Leadman classification

was created by the company in the exercise of its man-

agement func.ion to increase by one person the con-

stituent number of the loadout crews and to coordinate

and make the loadout crews more efficient. At no time

was it intended cr expressed by the company that

Loadout Leadmen should have any leading or direct-

ing authority over the crane operators. In fact the

grievant admitted that he was not told that the crane

operator was to be under his authority or direction.

Aside from the fundamental and more relevant con-

siderations noted above, simple mathematics demon-

strates the extreme fallacy of asserting that the com-

pany would consider placing the crane operators under

the scope of Loadout Leadmen. The rate of a Loadout

Man “A” is $2.95. The rate of a leadman of that clas-

sification would be $3.15. The rate of a crane operator

is $3.38. The rate of a leadman over that classification

would be $3.58. Obviously no one would pay a rate of

$3.58 per hour to direct work classifications having a

maximum rate of $2.95 per hour.

This record shows beyond doubt that the relation-

ship between the crane operators and the constituent

members of the loadout crew, including its Loadout

Leadman, has been unchanged for many years; that

crane operators are not subject to any peculiar author-

ity of Loadout Leadmen, that the classification of

Loadout Leadman was established through a proper

application of management function; and, that crane

A-23

operators were not placed within the scope of Loadout

Leadmen.

If as the majority have stated the resolution of the

issue here is not one that can come about through logi-

cal analysis, then the decision of the majority is based

upon personal whim, caprice, and speculation, all con-

eng to the contract under which this proceeding is

eld.

In their attempt to analogize, the majority miscon-

ceive the proper relationship between the ground

crews and the crane operators. The work of the two

ground crews is coordinated by the leadman, and they

constitute the near and off members of the team re-

ferred to by the majority. If the crane operators are

to be forced into the majority’s analogy they would be

more in the nature of a wagon or buggy following the

team, but not directed by the leadman. The function

of the cranes and the crane operators is to service the

loadout crews, and whether the loadout crews are co-

ordinated is not a concern of the crane operators.

The majority’s assertion that crane operators look

to the leadman for guidance flies into the face of the

uncontradicted record to the effect that crane opera-

tors receive and respond to directions from any mem-

ber of the ground crew whether he be a helper, a load-

out man A, or a loadout leadman.

The majority miss the issue completely when they

state “this can hardly mean that coordination does not

add to the work of the crews or that crane operators

are not affected by it.” The volume of work performed

was never in dispute. The sole issue presented by the

A-24

grievance is whether the Loadout Leadman is a lead-

man for the crane operators. This may be stated as a

question, “Is the relationship of the Loadout Leadman

to the crane operators any different from the relation-

ship of the loadout helpers and the Loadout Leadman

“A” to the crane operators?”

The answer to this question is a clear and unequivo-

cal “No”! The crane operator responds to the direction

or signal of any member of the loadout crew.

There is no evidence that the crane operator is in

anyway lead by the loadout leadman. The fact that the

crane operator takes his breaks and eats at the same

time as the loadout crew is no evidence he’s being lead

by the loadout leadman. The crane operator took his

breaks and ate at the same time the crew did before

there was a loadout leadman.

The fact that Crane Operator Ainsworth checked

with Leadman Hurry only after he had first deter-

mined there were no supervisors in the office clearly

shows that the crane operator recognized and knew

that the loadout leadman did not have jurisdiction or

authority over him.

There is absolutely no evidence that the crane opera-

tors look to the loadout leadman for guidance.

The majority’s statement, “I do not see how partici-

pation in coordination can be barred simply by admin-

istrative fiat that it doesn’t exist” reflects the fallacy

of their conclusion. The only work to be coordinated

was in the work of the ground crews upon the ground

and then primarily in the work of the Loadout Lead-

A-25

men “A”, There was no problem with or between the

crane operators at the time the Loadout Leadman

classification was established. Further, coordination

is not the crucial issue. The issue is limited to whether

the Loadout Leadmen lead and direct the crane opera-

tors. On this point the record shows without contradic-

tion that when the company created the Loadout Lead-

man classification, crane operators were excluded from

the authority of the Loadout Leadmen. In addition,

there is and was no need for any leading of the crane

operators.

The majority in the Supplemental Arbitration

Award doggedly continue to perpetuate the errors into

which they fell in their initial award. There is no evi-

dence to support the majority’s statement that “the

moving of Grievant, Mr. Hurry, from Loadout Man

“A” to Loadout Leadman was not a radical departure

from prior practice.” The majority must concede, as

the record irrefutably establishes, that the Loadout

Man “A” made frequent trips to the office for loading

instructions and shipping orders prior to the creation

of the leadman classification, Subsequent thereto

Loadout Man “A”s ceased going to the office and the

Loadout Leadman made all such trips. The majority’s

finding that “Making him (Mr. Hurry) a Leadman

was more a recognition of the scope of his duties al-

ready being performed than of the creation of new

duties. Now, instead of having to go to supervision as

a Loadout Man ‘A’ his new status enabled him to per-

form his lead work with somewhat more assurance”

is not only not supported by the record but is contrary

to it. There is absolutely no evidence from which it

A-26

ean be found or concluded that Mr. Hurry, prior to

his appointment to the Loadout Leadman position,

either had or exercised any lead authority over the two

ground crews. Mr. Hurry’s current lead authority

over the ground crews is by express management au-

thority and he does not, as the majority state, “per-

form his lead work with somewhat more assurance.”

(Emphasis supplied).

The finding and conclusion of the majority that,

“But if it can be said that becoming a leadman

made no difference in the work of the crane oper-

ators it can equally be said that it made no differ-

ence in the work of the ground crews”

flies in the face of the record and is simply not true.

Obviously, the ground crews performed the same kind

of work they previously did, but their source of imme-

diate direction became the Loadout Leadman and not

Mr. Wicker.

The majority continue to misapprehend the facts in

their Supplemental Award when they state, “It is

abundantly clear that the crane operators are an in-

separable part of the loadout crews in the shipping

yard and a Leadman with respect to part is unavoid-

ably leadman of all.” The crane operators and the

loadout ground crews work together harmoniously, but

it does not follow logically that a leadman of the

ground crews of necessity leads and directs the crane

operator. The majority’s statement is in the nature of

the “fiat” they condemn when exercised by manage-

ment.

Similarly the majority err in their finding and con-

A-27

clusion ““* * * so that when a leadman was given the

function of coordinating the work of the ground crews

he necessarily cooredinated (sic) the work of all. A

leadman could scarcely coordinate a part without co-

ordinating the whole and the crane operators are as a

matter of inescapable fact a part of the whole.” The

majority have ignored the record and substituted their

judgment for that of management. Whether the lead-

man coordinates or directs only a part of an operation

is of no concern to the majority. Likewise, whether the

majority feel that other or different action would be

better or less difficult of accomplishment is entirely

beyond their authority. The majority cannot lawfully

substitute their judgment for that of management as

they have done in their award.

The majority have arrogated unto themselves strict-

ly managerial functions that belong to and are to be

exercised by the company. It is not within the province

of the majority to substitute their judgment for that

of management in limiting or expanding the scope of

authority of an employee.

The creation of a new job and the definition and

determination of its content, duties and responsibili-

ties is by nature an essential right and function of

management protected by the collective agreement and

it is not the result of the exercise of administrative

fiat.

Here the job created by the company was non-su-

pervisory, expressly limited to the loadout ground

crews, and did not include crane operators. The exclu-

sion of crane operators was within the province and

A-28

authority of management and was not the exercise of

administrative fiat. The attempt of the majority to

place the crane operators under the loadout leadmen

constitutes a clear overreaching of management in set-

ting up and limiting the job and job content and a

usurpation by the majority of management’s au-

thority and function for which there is no grant or

support in the contract or the law.

If it is true, as the majority suggests, that limiting

the direction of the loadout leadmen to the loadout

ground crews would not achieve maximum coordina-

tion in the department, such a result would be clearly

the responsibility of management and not for the ar-

bitrators to attempt to remedy by decreeing a change

in the job content, duties and responsibilities of the

loadout leadmen as the majority has sought to do in

this case.

The grievance should be denied.

/s/ Harold E. Mueller

Arbitrator for Texas Steel Company

A-29

APPENDIX “B”

DISTRICT COURT’S ORDER GRANTING UNION’S

MOTION FOR SUMMARY JUDGMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CIVIL ACTION NO. CA 4-74-44

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS

DISTRICT 776

VS.

TEXAS STEEL COMPANY

ORDER

This is an action involving the violation and en-

forcement of a collective bargaining agreement. This

Court has jurisdiction under 29 U.S.C. § 185.

This case arose out of a grievance initiated by Mr.

A. J. Hurry alleging that he was a lead man and

being paid at a rate lower than required by the collec-

tive bargaining agreement. The agreement, in perti-

nent part, requires the lead man to be paid $.20 an

hour above the highest led classification rate. Follow-

ing the procedure required by the agreement, the

arbitration panel concluded that the company had

violated the agreement and sustained the alleged

grievance. The defendant has refused to abide by the

arbitration award.

The issues in this case are (1) whether the griev-

ance is arbitrable, and, if so, (2) whether the arbitra-

A-30

tor’s award is based on the collective bargaining

agreement. United Steel Workers v. Enterprise Wheel

& Car Corp., 363 U.S. 593 (1960) ; United Steel Work-

ers v. Warrior & Gulf Navigation Co., 363 U.S. 574

(1960) ; United Steel Workers v. American Mfg. Co.,

363 U.S. 564 (1960).

The decision of whether or not a grievance is arbi-

trable should be determined under the arbitration

clause of the collective bargaining agreement. See,

United Steel Workers v. American Mfg. Co., supra.

In the case at bar, the agreement called for the Arbi-

tration Board to decide the proper interpretation and

application of any of the contract provisions. The

arbitrator interpreted the contract provision requir-

ing the lead man to receive additional compensation

of $.20 per hour. He then applied the facts of the

case to determine who the lead man was leading. This

was a necessary implication of interpreting the con-

tract. The arbitrator did not invade the province of

management and tell them who the lead man was to

lead, but merely looked at the facts as they existed to

determine who he was actually leading. Even though

this Court may not necessarily agree with the decision

of the arbitrator, under the permissible scope of re-

view the determination that the lead man in fact led

the craneman involved an interpretation and appli-

cation of the contract, and, therefore, was arbitrable.

United Steel Workers of America v. Warrior and

Gulf Navigation Co., supra, involved a similar fact

situation. In that case the parties had not negotiated

regarding the employer’s contracting out some work.

After the union filed a grievance under the collective

A-31

bargaining agreement, the employer answered that

under the contract this was strictly a management

decision and was not arbitrable. Even in the face of

the management rights clause, the Court held the

issue to be arbitrable under the contract. In the case

at bar, the issue is also whether the management

rights clause removes this question from the arbitra-

tion clause. Here also the answer must be that the

facts present a question of the interpretation and

application of the contract and are, therefore, argu-

ably within the arbitration clause.

After determining that the case was arbitrable, the

question is whether the award is based on the arbi-

trator’s interpretation of the collective bargaining

agreement, The arbitrator made a factual determina-

tion regarding the lead man and then applied that

determination to the contract clause. It is clear in this

case that the award is based on the arbitrator’s inter-

pretation of the agreement and that he did not dis-

pense his own brand of industrial justice. United

Steel Workers of America v. Enterprise Wheel and

Car Corp., supra, at 597.

After viewing the case under the permissible scope

of review, it is clear that the plaintiff is entitled to

its motion for summary judgment.

It is therefore Ordered and Adjudged that the

plaintiff’s motion for summary judgment is granted

with each party to pay their own costs and attorney’s

fees.

Entered this 26th day of October, 1974.

/s/ Eldon B. Mahon

United States District Judge

A-32

APPENDIX “C”

OPINION OF THE COURT OF

APPEALS FOR THE FIFTH CIRCUIT

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE

WORKERS, DISTRICT 776, Plaintiff-

Appellee Cross Appellant,

v.

TEXAS STEEL COMPANY, Defendant-

Appellant Cross Appellee.

No. 74-4083.

United States Court of Appeals,

Fifth Circuit.

Sept. 17, 1976.

Michael D. Shattman, Harold E. Mueller, Ft.

Worth, Tex., for defendant-appellant cross appellee.

James L. Hicks, Jr., Dallas, Tex. for plaintiff-appel-

lee cross appellant.

Appeals from the United States District Court for

the Northern District of Texas.

Before GEWIN, GODBOLD and SIMPSON, Cir-

cuit Judges.

GEWIN, Circuit Judge:

Following Texas Steel Company’s (hereinafter Com-

pany) refusal to abide by the decision of an arbi-

tration panel, District 776 of the I.A.M. (hereinafter

A-33

Union) instituted this action in the court below seek-

ing enforcement of the award.’ The district court

granted summary judgment for the Union based on.

the pleadings and exhibits. It also directed that each

party pay its own costs and attorneys’ fees. The

Company appeals from the order granting summary

judgment and the Union cross-appeals from the fail-

ure of the district court to award it costs and attor-

neys’ fees. We affirm with respect to the main appeal

and vacate and remand with respect to the cross-

appeal.

I. Facts

The Company’s shipping yard operation entails

moving its factory output from the plant and loading

the goods onto trucks. Involved in this function are

two ground crews and two cranes and crane operators.

Prior to 1970 each of the two crews was coordinated

by a “Loadout Man ‘A.’” The plant’s shipping yard

activity increased in volume and in the 1970-71 con-

tract between the Company and the Union a new job

classification was created in the yard.

The new position was entitled “Loadout Leadman” ;

the persons appointed to it were those who previously

had been designated Loadout Men “A.” The Leadman

position was specifically designated as being non-

supervisory. Apparently the duties of the leadmen

were not altered a great deal from those the Loadout

Men “A” previously had performed. The essence of

the leadmen’s job was to coordinate and ensure the

smooth functioning of the shipping yard operation.

1Jurisdiction was based on 29 U.S.C. § 185.

A-34

The position was added primarily to obtain more

workers in this growing facet of the Company’s oper-

ation.

The 1971-72 labor contract between the Company

and the Union provided that leadmen were to be paid

“at least $.20 above highest led classification rate.”

Pursuant to this provision Leadman A. J. Hurry was

paid $3.15, which was 20 cents per hour above what

the highest paid ground crew members (now Loadout

Men “A’’) received. The shipping yard crane opera-

tors, however, were paid $3.38 per hour under the con-

tract. Thus, in January of 1972 A. J. Hurry filed a

grievance with union officials, contending that he

should be paid $3.58 per hour, rather than $3.15,

because he “led” the crane operators as well as the

ground crew.

II. Prior Proceedings

Initial stages of the grievance procedure failed to

result in resolution of the dispute and it proceeded to

arbitration. The Company voluntarily submitted to

arbitration. The arbitration panel consisted of one

Company representative, one Union representative

and one impartial arbiter. Concluding that it was in-

evitable that the leadmen “led” the crane operators

as well as the ground crew members because otherwise

the yard operation would not be coordinated, the panel

ruled in favor of the Union. The Company representa-

tive dissented.

After the Company voiced strong objection to the

award, a subsequent hearing was held. Another de-

A-35

cision affirming the original conclusion was entered.”

The decision recognized that the leadmen’s duties did

not differ a great Cea] from those they had previously

performed as Loadout Men “A,” although it was also

noted that leadmen did in fact exercise more super-

vision in the first instance than had the Loadout Men

“A”. The panel summarized its findings and conclu-

sions as follows:

[Tjhe record shows that the work of the shipping

yard is carried on as a combined cooperative inte-

grated effort of the men on the ground and the men

in the cranes, so that when a leadman was given the

function of coordinating the work of the ground

crews he necessarily coordinated the work of all.

A leadman could scarcely coordinate a part without

coordinating the whole and the crane operators are

as a matter of inescapable fact a part of the whole.

The Company refused to accept the decision of the

arbitration panel, despite the fact that under the col-

lective bargaining agreement that decision was “final

and binding.” The Union filed this action in the court

helow to enforce the award. The court concluded that

the grievance was arbitrable and that the award was

hased on the collective bargaining agreement. Sum-

“sry judgment for the Union was granted on the

basis of the pleadings and exhibits, but it was not

awarded costs and fees. This appeal and cross-appeal

ensued.

2Both the original and the supplemental decisions of the arbitration panel

were written by the impartial arbitrator. There is no contention by the

Company that these decisions do not represent the view of the panel-

majority.

A-36

III. The Company’s Appeal

A. Appropriateness of Summary Judgment

The Company contends that summary judgment

was inappropriate in this case and cites four pur-

ported “material factual issues” in support of this

position. The fundamental defect in this argument

i3 that matters in dispute characterized as “fact”

issues by the Company are actually conclusions of law,

not questions of fact.* It is axiomatic that where ques-

tions of law alone are involved in a case summary

judgment is appropriate. See Asuncion v. District

Director, INS, 427 F.2d 523, 524 (9th Cir. 1970);

Ammons v. Franklin Life Insurance Co., 348 F.2d

414, 416-17 (5th Cir. 1965); Molinos De Puerto

Rico, Inc. v. Sheridan Towing Co., 62 F.R.D. 172,

176-78 (D.P.R. 1973). When an arbitration award

has been made, the only potential areas for considera-

tion of factual questions that would preclude sum-

mary judgment concern whether the dispute actually

was arbitrable, H. K. Porter Co. v. Local 37, United

Steelworkers, 400 F.2d 691, 695-96 (4th Cir. 1968) ;

Local 1645, U.A.W. v. Torrington Co., 358 F.2d 103

(2d Cir. 1966); Local 12799, U.M.W. v. Matthiessen

’The alleged material issues of “fact” are: (1) whether a violation of the

collective bargaining agreement was involved; (2) whether the Com-

pany is engaged in interstate commerce; (3) whether the collective

bargaining agreement was in effect at the relevant times; and (4)

whether the arbitration panel concluded that the Company had violated

the agreement and, apparently, whether the panel sustained the griev-

iii numbers (2) and (3) supra are mixed questions of law

and fact that might preclude summary judgment. However, the Com-

pany is unquestionably subject to NLRB jurisdiction, which requires

the interstate nexus, and it admitted in its answer that the collective

1972. Hence, these elements actually were and are not disputed issues.

A-37

& Hegeler Zine Co., 291 F.Supp. 578 (N.D.W.Va.

1968), and whether the award drew its “essence”

from the agreement, Marble Products Co. v. Local

155, United Stone & Allied Products Workers, 335

F.2d 468, 471 (5th Cir. 1964); Torrington Co. v.

Local 1645, U.A.W. 362 F.2d 677, 679-80 & nn. 5-6

(2d Cir. 1966). This inquiry entails whether the al-

leged arbitrable claims are governed by the contract

and its arbitration provisions and whether the arbi-

tration panel has confined its decision, and possibly

the remedy, to the interpretation and application of

the collective bargaining agreement. The court must

scrupulously avoid the invasion of the arbitration

panel’s sphere and the enticement of ruling on the

“intrinsic merits” of the dispute. International Ladies’

Garment Workers Union v. Ashland Industries, Inc.,

488 F.2d 641 (5th Cir.), cert. denied sub nom., Alfin

v. International Ladies’ Garment Workers Union, 419

U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974); Team-

sters Local 745 v. Braswell Motor Freight Lines, Inc.,

428 F.2d 1371 (5th Cir. 1970), cert. denied, 401 U.S.

937, 91 S.Ct. 926, 28 L.Ed.2d 217 (1971).

Accordingly, the question of the propriety of sum-

mary judgment in this case turns on whether there

were material issues of fact concerning the arbitra-

bility of the dispute and the proper application of the

“essence” standard. Since there were no materia!

questions of fact concerning these issues, summary

judgment was appropriate. Thus, the point of con-

tention that we must resolve concerns whether the

district court applied the correct test and reached the

correct result on the legal questions of arbitrability

and scope of the arbitration panel’s decision. See Mar-

A-38

ble Products Co. v. Local 155, Uniled Stone & Allied

Products Workers, 335 F.2d 468 (5th Cir. 1964).

B. Arbitra>ility

1. Standard Utilized Below

In holding that the instant dispute was arbitrable,

the district court employed principles enunciated in

the ‘Steelworkers’ Trilogy,’* and concluded that since

the dispute was arguably within the arbitration clause

it was, in fact, arbitrable. The Company asserts that

this test applies only when the employer refuses to

ar>itrate in the first instance, rather than in situa-

tions, such as the instant one, where the employer

voluntarily proceeds to arbitration but refuses to

abide by the award. However, this position is at least

implicitly rejected by one of the “Steelworkers’ Tri-

logy” itself ;* further, this court has specifically ruled

that the postulates enunciated in the Trilogy apply

to suits to enforce arbitration awards as well as those

t» compel arbitration in the first instance. Teamsters

Local 745 v. Braswell Motor Freight Lines, Inc., 392

F.2d 1 (5th Cir. 1968).° Moreover, the Braswell doc-

‘United Steclworkers v. American Manufacturing Co., 363 U.S. 564, 80

S.Ct. 1343, 4 L.Ed 2d 1403 (1960); United Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409

(1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363

U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

‘The Enterprise Wheel & Car Corp. case involved an action for enforce-

ment of an arbitration decision.

‘Braswell was modified on rehearing in minor respects not relevant for

our purposes at 395 F.2d 655. The case was affirmed after remand in

relevant part at 428 F.2d 1371. Certiorari was denied at 401 U.S. 937,

91 S.Ct. 926, 28 L.Ed.2d 217 (1971). It is a definitive statement in

this circuit on the sspects of federal labor law with which it dea‘, in-

cluding the propositon for which we cite it. See Local 25, San Antonio

Newspaper Guild v. San Antonio Light Div’n, 481 F.2d 821, 823-24

& n. 2 (5th Cir. 1973).

BST COPY AVAILABLE

A-39

trine is based on solid reasoning. A company or union

should not be permitted to defeat the sound policies

supporting the presumption of arbitrability by the

mere procedural device of going to arbitration, but

refusing to abide by the award. Accordingly, the dis-

trict court did not err in applying the presumption

of arbitrability in this case.

2. Result Reached Below

The Company asserts that the dispute was not ar-

bitrable because the Compariy has the sole discretion

to create new job classifications. The leadman position

was such a new classification, the argument goes, and

therefore the panel exceeded its power by, in effect,

deciding whom the leadman led.

The short answer to this contention is that the

clause empowering the Company to create new job

classifications is explicitly and specifically “subject to

other provisions of [the contract] and to [its] griev-

ance procedure.” There is no provision in the contract

that meets the “Steelworkers’ Trilogy” standard,

which requires a clear and unambiguous exclusion of

the dispute from the arbitration mechanism in order

to defeat arbitrability. See Communications Workers

v. Southwestern Bell Tel. Co., 415 F.2d 35, 38-39 5th

Cir. 1969). Thus, the district court’s conclusion that

the instant dispute was arbitrable is not erroneous.

C. Essence Vel Non?

The Company contends that the arbitration panel’s

decision is arbitrary and capricious in that it did not

confine itself to the interpretation and application of

A-40

the collective bargaining agreement. In addition, the

Company contends that the decision cannot be ration-

ally derived from that agreement. In substance, the

Company’s argument is based on its conclusion that

the panel decision assigned to the leadmen certain

duties that in its opinion the leadmen should perform,

rather than the duties which the Company, in its sole

and rightful discretion, assigned to the position.

In these types of cases, however, the scope of review

by courts is extremely limited. When the question of

arbitrability is resolved in favor of arbitration, our

only remaining function is to determine whether the

award draws its “essence” from the collective bar-

gaining agreement; we do not review the merits or

the factual and legal accuracy of the arbiter’s find-

ings. Local 540, Amalgamated Meat Cutters v. Neu-

hoff Bros. Packers, Inc., 481 F.2d 817 (5th Cir. 1973).

The “essence” standard is to be interpreted expan-

sively so as to uphold the award, rather than restric-

tively. See United Steelworkers v. United States Gyp-

sum Co., 492 F.2d 713, 731-32 (5th Cir.), cert. denied,

419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974).

In the instant case the collective bargaining agree-

ment grants the arbitration panel, “full authority to

decide the proper interpretation and application of

any of the provisions,” but denies it the power, “to

ad to, detract from or change,” any of the provisions.

As noted above, the Company’s right to create new

job classifications is expressly subject to the agree-

ment’s grievance provisions; the clause upon which

the Union based its claim, and the arbitration panel

A-41

its award, provides that the “Leadman classification

shall be at least $.20 above highest led classification.”

It is apparent that in concluding that the leadmen

led the crane operators, the panel was merely inter-

preting and applying these provisions of the agree-

ment to the realities of the loading dock operation.

The Company admitted that the shipping yard work

necessitated “cordination” among the entire crew, in-

cluding the crane operators. The panel quite reason-

ably concluded that in order for the work to be coordi-

nated the leadmen as a practical matter “led” the

crane operators as well as the ground crew. Appar-

eitly, the Company would have us make a delicate

differentiation between directing the work so as to

coordinate it and leading a crew. Unappealing as the

drawing of such an ethereal distinction might be in

the first instance, certainly its mere enunciation evi-

dences the fact that the arbitration panel did not act

arbitrarily or capriciously in refusing to make it. The

panel’s decision is well within the standard which

requires it to draw its “essence” from the contract;

the district court did not err in ordering enforcement

of the award.

IV. The Union’s Cross-Appeal

The Union contends that the Company’s refusal to

abide by the arbitration award was without justifica-

tion and that, therefore, the Union was entitled to an

award of attorneys’ fees and costs. United Steel-

workers v. United States Gypsum Co., supra Part

III C. It asserts that this court is as capable as the

district court of resolving the question whether a

A-42

challenge to an arbitration award is without justifi-

cation because the standards for judicial review in

these cases are so restricted. It asserts that since the

district court found it “clear” that the panel based

the award on the contract and “clear” that the Union

was entitled to summary judgment, it is apparent

that the Company raised no colorable or valid argu-

ments in opposition to the award. Accordingly, the

Union asserts that in order to discourage frivolous

refusals to abide by arbitration decisions, and to foster

the clear federal labor policy favoring arbitration,

this court should declare the Company’s challenge in

this case to be without justification and should order

the award of costs and attorneys’ fees.

We find the Union’s analysis rather compelling. Al-

though § 301 of the Labor Management Relations Act’

does not specifically provide for costs and attorneys’

fees, it is clear that when a challenge to an arbitration

panel’s decision is without justification these costs are

awardable. District 50, U.M.W. v. Bowman Trans-

portation, Inc., 421 F.2d 934 (5th Cir. 1970); Local

149, U.A.W. v. American Brake Shoe Co., 298 F.2d

212 (4th Cir.), cert. denied, 369, U.S. 873, 82 S.Ct.

1142, 8 L.Ed.2d 276 (1962); Local 494, I.B.E.W. v.

Artkraft, Inc., 375 F.Supp. 129, 132-33 (E.D.Wis.

1974); Local 4076, United Steelworkers v. United

Steelworkers, 338 F.Supp. 1154, 1164 (W.D.Pa. 1972)

(Supp.Mem). However, this court’s scope of review

is limited to determining whether the district court

abused its discretion in its decision concerning costs

and attorneys’ fees. Local 4, 1.B.E.W. v. Radio Thir-

799 U.S.C. § 185.

A-43

teen-Eights, Inc., 469 F.2d 610, 615 (8th Cir. 1972);

District 50, U.M.W. v. Bowman Transportation, Inc.,

supra at 935.

In the present posture of this case, we are unable

to find such an abuse of discretion, although we note

that any justification for the Company’s challenge is

not apparent. The only clause that the Company pur-

ports to rely on is expressly subject to the grievance

procedure, which includes “final and binding” arbi-

tration. Beyond peradventure the panel’s decision was

not arbitrary or capricious.‘ Accordingly, the only

real contention the Company has made throughout

this case goes to the “intrinsic merits” of the dispute.

As previously noted, this challenge appears devoid of

merit because it does not go to the jurisdiction of the

arbitration panei (arbitvab lity) or the validity of

the award (“essence”). Cf. Local 179, United Textile

Workers v. Western Textile Products Co., 374 F.Supp.

633 (E.D.Mo.1974) (jurisdiction and “essence” were

“sincerely questioned’; award of fees would be in-

appropriate).

We refuse to countenance frivolous and wasteful

judicial challenges to conscientious and fair arbitra-

tion decisions. In the case sub judice the district court

ordered each party to bear its own costs and attor-

neys’ fees, but made no finding on whether the Com-

pany’s challenge was justified. We vacate and remand

on the cross-appeal for a specific finding on this ques-

tion and an award of costs and attorneys’ fees by the

district court if it determines that the refusal to abide

by the arbitration award was without justification.

8For the reasons stated in Part III supra.

A-44

See Sheeder v. Eastern Express, Inc., 375 F.Supp. 655,

661 (W.D.Pa.1974) (rule stated, relevant cases cited) ;

Local 15253, U.M.W. v. James Julian, Inc., 341

F.Supp. 503, 508 (M.D.Pa.1972) (rule stated, rele-

vant cases cited).

AFFIRMED on main appeal; VACATED and RE-

MANDED with directions on cross-appeal.

A-45

APPENDIX “D”

Pertinent Portions Of Agreement Between Texas Steel

Company, Fort Worth, Texas And The International

Association Of Machinists And Aerospace Workers,

Lodge 1591, November 21, 1971, Fort Worth, Texas

ARTICLE III

RELATIONSHIP BETWEEN THE COMPANY

AND THE UNION

Section 3. The management of the plant, the hir-

ing of employees, the selection of employees for super-

visory or other classifications not subject to this

Agreement, the determination of the products to be

manufactured, the location of Company plants, the

schedules of production, the methods, standards, pro-

cesses and means of manufacturing is vested exclu-

sively in the Company.

The Company shall have the right, subject to other

provisions of this Agreement and to the grievance

procedure hereof, to direct the working forces, includ-

ing but not limited to the right to suspend, demote or

discharge employees for proper cause, to lay off for

lack of work or other proper reasons, to transfer em-

ployees from one job to another and from one shift

to another and to change the classification of any em-

ployee when such action is not inconsistent with the

seniority provisions hereof and to create new and

additional job classifications for jobs not already cov-

ered by the provisions of this Agreement.

A-46

ARTICLE XII

GRIEVANCE PROCEDURE

Section 1. The term grievance means any dispute

between the Company and an employee, a group of

employees, or the Union concerning the effect, inter-

pretation, application, claim of breach or violation of

this Agreement.

Section 4. The party desiring to refer an unsettled

dispute or grievance to arbitration shall notify the

other party in writing ten (10) working days after

receipt of the decision of the Company in Step Three

of the grievance procedure, of its intention to arbi-

trate.

Section 5. The Board of Arbitration shall consist

of three (3) members; one (1) to be selected by the

Company; one (1) to be selected by the Union, and a

third and neutral member to be selected by these two.

Section 10. The Arbitration Board shall meet in

Fort Worth as soon as posible, but not later than

thirty (30) days following the decision of the third

arbiter, hear all the evidence in the case and render

' a decision in writing as soon after the close of the

hearing as conveniently possible.

Section 11. The Arbitration Board shall have full

authority to decide the proper interpretation and ap-

plication of any of the provisions of this Agreement,

but shall not have the power to add to, detract from

or change any of its provisions.

Section 12. A majority decision of the Arbitration

Board rendered in accordance with the foregoing pro-

cedure shall be final and binding on all the parties.

A-47

APPENDIX A, PAGE 43

Min 30 90

Rate Days Days

SERVICE AND SUPPLY

CG Ee 2.95

ES 2.80

I 2.74

Bender Operator “A” ............................-. 3.01

Ag 2.85

I a sccmnemenionaines 3.22

I 2.82

CC I EE 3.38

I I I ne eesidalaeieasidedeiaaiicin 2.92

General Helper —

ETT SE Tce ee 2.30 2.40 2.59

General Helper —

Mill Shipping and

EEE aera over 2.30 2.40 2.59

I 2.85

i 2.85

ee 2.95

Oe 2.76

TSN TS TO 3.11

ig hE 2.90

he Toe 3.11~

ee etree 2.69

Pin Bender Operator —.........0...0...0...00.0.-- 2.74

Scrap Burner (Mill Area) .............0....... 2.85

STA SS a en 2.95

Yard Crane Operator “A” ou. 3.38

Yard Crane Operator “B” . 2.92

Employees assigned to operate the steel saw for one hour or

more continually shall be paid Shearman “A” rate or his

classification rate, whichever is higher, for the time actually

operating the saw.

Leadman classification shall be at least $.20 above highest led

classification rate.