Petition for Writ of Certiorari — Mahoney v. Laundry, Dry Cleaning & Dye House Workers International Union, Local 93, of Springfield, Missouri

In the Supreme Court of the UnitedStates ~

OCTOBER TERM, 1973

No. @3- 1459

ROBERT M. MAHONEY, JOYCE B. MAHONEY, MI-

CHAEL MAHONEY, PATRICK MAHONEY and JEF-

FREY MAHONEY, d/b/a BORMON INVESTMENT

COMPANY, AMERICAN LAUNDRY COMPANY, and

COLONIAL LINEN SERVICE,

Petitioners,

vs.

LAUNDRY. DRY CLEANING AND DYE HOUSE

WORKERS INTERNATIONAL UNION, LOCAL 93

OF SPRINGFIELD, MISSOURI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

DoNnALD W. JONES

PREWITT, JONES & KARCHMER

110 Landmark Building

Springfield, Missouri 65806

Attorneys for Petitioners,

Robert M. Mahoney, et al.

E. L. Menpewnatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8080

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INDEX

Opinions Below 2

Jurisdiction 2

Questions Presented 2

Statute Involved 4

Statement of the Case 5

Reasons for Granting the Writ 11

Conclusion 18

Appendix A—Opinion of the Court of Appeals ................ Al

Appendix B—Judgment of the Court of Appeals ........ A25

Appendix C—Petition for Rehearing Denied ................ A26

Appendix D—Issuance of Mandate Stayed .................... A27

Appendix E—Earlier Opinion of the Court of Appeals

A28

Appendix F—Decision of the District Court for the

Western District of Missouri A39

Table of Authorities

CASES

Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962) 13

Federal Labor Union v. Midvale-Heppenstall Co., 421

F.2d 1289 (3rd Cir. 1970) 17

H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970) ................ 13

International Union of Electrical Workers v. General

Electric Co., 407 F.2d 253 (2d Cir. 1968), cert. den.

395 U.S. 904 (1969) 18

International Union of Operating Engineers, Local 279

v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir.

1973) jie 17

icintaletnaiediadineaiihiiadiae i ames : ee seraree

II

John Wiley & Sons v. Livingston, 376-U.S. 543 (1964) .... 13

NLRB v. Burns International Security Service, 406 U.S.

297 (1972) 13

Poller v. Columbia Broadcasting System, 368 U.S. 464

(1962) 5

RCA v. Association of Scientists, 414 F.2d 893 (3rd

Cir. 1969) 17

Steelworkers v. American Mfg. Co., 363 U.S. 564

(1960) 15, 18

Steelworkers v. Warrior and Gulf Navigation Co., 363

U.S. 574 (1960) 12, 13, 15, 18

West Coast Telephone Co. v. IBEW Local 77, 431 F.2d

1219 (9th Cir. 1970) 17

STATUTES

National Labor Relations Act (61 Stat. 136, 29 U.S.C.

§§ 151 et seq.) —

Section 8(b)(1)(B) -... 4,13

Section 8(d) 4,13, 14, 16

Section 203 (d) a ee

Section 301 (a) 5

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1337 2

29 U.S.C. § 185(a) 2

OTHER AUTHORITY

S. Rep. No. 573, 74th Cong., Ist Sess. 12 (1935) ............ 13

In the Supreme Court of the United States

OCTOBER TERM, 1973

No.

ROBERT M. MAHONEY, JOYCE B. MAHONEY, MI-

CHAEL MAHONEY, PATRICK MAHONEY and JEF-

FREY MAHONEY, d/b/a BORMON INVESTMENT

COMPANY, AMERICAN LAUNDRY COMPANY, and

COLONIAL LINEN SERVICE, Ԥ

Petitioners,

vs

LAUNDRY, DRY CLEANING AND DYE HOUSE

WORKERS INTERNATIONAL UNION, LOCAL 93

OF SPRINGFIELD, MISSOURI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

The Petitioners, Robert M. Mahoney et al. (hereafter

called “Employers”), respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the a Circuit

en banc in this case.

OPINIONS BELOW

The opinion of the court of appeals en banc (App. A,

infra, pp. Al-A24) is reported at ........ Fae «...... , 85 LRRM

2880. The earlier opinion by a three judge panel of the

court of appeals (App. E, infra, pp. A28-A38) is reported at

Saker F.2d __._., 84 LRRM 2084. The decision of the District

Court for the Western District of Missouri (App. F, infra,

pp A39-A47) is not reported.

JURISDICTION

The judgment of the Court of Appeals was eniered

on January 22, 1974 (App. B, infra, p. A25), and Employ-

er’s timely petition for rehearing en banc was denied on

February 13, 1974 (App. C, infra, p. A26). This petition

for certiorari is filed within ninety (90) days of the latter

date, and within thirty (30) days of the order of March

6, 1974, in which the court of appeals stayed the issuance

of mandate (App. D, infra, p. A27). Original jurisdiction

in the District Court was invoked under 29 U.S.C. § 185(a)

and 28 U.S.C. § 1337. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. Where a Union and Employer under their collec-

tive bargaining agreement have reopened wage rates and

seniority provisions “for negotiation” in the middle of the

contract term and while the no strike clause is in effect,

whether federal policy under 29 U.S.C. § 158(d) requires

those parties to negotiate in good faith for any changes

in such reopened provisions without any official compul-

sion, or whether the Union may refuse to negotiate and

3

instead insist on arbitration of the new wage rates and

seniority provisions in reliance on the arbitration clause

of the agreement under which the parties have agreed

to arbitrate “grievances” claiming contract violations?

2. In determining questions of substantive arbitra-

_ bility, is it the proper role of federal courts to order an

employer to arbitrate a dispute over reopened wage rates

during the middle of the contract where the Employer

has expressly agreed to arbitrate only “grievances” and

none exists and where the contract of the parties has

expressly stated that the wage rates are to be reopened

only “for negotiation”? Is it proper for federal courts

to infer an agreement to arbitrate on normally negotiable

issues which the parties have expressly agreed to “nego-

tiate”, or should the presumption of arbitrabiuty apply

only to “grievances” which the parties have expressly in-

cluded as the type of issues they agree to arbitrate?

3. Is it proper for federal courts to create obligations

to arbitrate new wage rates and contract provisions (which

the Union and Employer have reopened “for negotiation”)

by use of a presumption that any dispute is arbitrable

(even disputes not involving a claim of contract violation)

where the Union has waived its right to strike with respect

to that dispute by an absolute no-strike clause?

4: Where the arbitration clause of a collective bar-

gaining agreement expressly provides that the arbitrator

“shall not have the power to add to, subtract from, or

change the terms of the agreement,” is it proper for a

Union to obtain an order that the Employer appear be-

fore an arbitrator for the purpose of having the arbitrator

impose new wage rates and contract provisions on the

parties? Does such clause limiting the arbitrator’s

“power” establish that the Union’s claim is an issue that

4

is not arbitrable as beyond the jurisdiction or authority

of the arbitrator, as the Employers claim, or must the

Employers be ordered to go to arbitration on the Union’s

claim and then to reapply to the Court to set the Arbitra-

tor’s decision aside later if he exceeds the contractual

limitations on his powers?

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act (61 Stat. 136, 29 U.S.C. §§ 151 et seq.) are

as follows:

Sec. 8 (b) (1) (B). “It shall be an unfair labor

- practice for a labor organization or its agents—(1)

to restrain or coerce * * * (B) an employer in

the selection of his representatives for the purposes

of collective bargaining or the adjustment of griev-

ances”.

Sec. 8 (d). “For the purposes of this section,

to bargain collectively is the performance of the mu-

tual obligation of the employer and the representative

of the employees to meet at reasonable times and

cor:fer in good faith with respect to wages, hours and

other terms and conditions of employment, or the nego-

tiation of an agreement or any question arising there-

under, * * * but such obligation does not compel

either party to agree to a proposal or require the

making of a concession * * *”.

Sec. 203 (d). “Final adjustment by a method

agreed upon by the parties is hereby declared to be

the desirable method for settlement of grievance dis-

putes arising over the application or interpretation

of an existing collective-bargaining agreement. * * *”

——— 4

5

Sec. 301 (a). “Suits for violation of contracts

between an employer and a labor organization repre-

senting employees * * * may be brought in any

district court of the United States having jurisdiction

of the parties * * *”.

STATEMENT OF THE CASE

In 1971 both the Employer and Union were bound

by a contract-which was to expire on August 8, 1973.

Both parties gave timely notice to reopen the subject of

wages and seniority in 1971, under Section 2 of Article

XX (A. 30)? of that agreement, which provides:

“Section 2. Either the Employer or the Union

shall have the right as of August 8, 1971, to reopen

for negotiation on the subject of wages and seniority

only, upon either party giving written notice sixty

(60) days prior to such reopening date. * * *” (Em-

phasis added)

On January 10, 1972, while negotiations were still

in progress and without any impasse having been reached

(A. 44)® the Union instituted a Complaint in the District

1. All relevant terms of the contract are set out in the

en banc opinion of the Eighth Circuit (App. A, infra, pp. A2-A5),

and therefore will not be set out here except where repetition is

deemed necessary.

2. Reference to “A.” followed by numbers are to the page

numbers of the Joint Appendix which was printed for use in the

Eighth Circuit and which has been made a part of the certified

record which has been transmitted by the Clerk of that Court.

3. Since the District Court’s judgment which was affirmed

by the divided opinion of the Eighth Circuit, which we seek to

have reviewed, was rendered under a summary judgment motion

of the Union, the factual assertions made in the affidavits filed

hy the Employers with the District Court must be deemed to be

‘rue for the purposes of this case. Poller v. Colum*is Broadcast-

ing System, 368 U.S. 464, 468, 473 (1962). All doubts as to factual

disputes must be resolved in favor of the Employers who opposed

the Union’s motion for summary judgment.

A 6

Court seeking to compel the Employers to submit to bind-

ing arbitration the reopened issues. Thereafter the Union

refused to further negotiate these issues.

The Employers’ motion to dismiss or for summary

judgment, supported by an affidavit showing that no griev-

ance existed which was subject to arbitration and that

the Employers desired to further negotiate the issues, and

that the Employers had made proposals to which the Union

had not even responded and Employers were willing to

make further proposals more favorable to the Union (A.

42-45, 50-54), was overruled by the District Court’s order

of September 11, 1972 (A. 58-66, App. F, infra, pp. A39-

A47), which granted summary judgment to the Union

ordering the Employers to submit the reopened issues to

binding arbitration.

After quoting the contract provisions which the Dis-

trict Court found pertinent (A. 59-60) (omitting any refer-

ence to Sections 1 through 4 of the Grievance and Arbi-

tration Article, A. 20-21, which define “grievance” and

outline the steps which the parties have agreed are condi-

tions precedent to any obligation to arbitrate such griev-

ances), the District Court held that federal policy favors

the arbitration of disputes, that the failure of the parties

to reach an agreement on the negotiable wage and senior-

ity provisions constituted a “dispute” and that therefore

the parties must arbitrate this dispute, particularly because

the District Court found that arbitration is the quid pro

quo for the no-strike and no lockout clause (A. 20). The

District Court relied, not cn the Arbitration clause of the

agreement for its holding that all non-strikeable “disputes”

must be arbitrated, but on the “Purpose” clause (A. 10)

set out in the preamble to the agreement. The District

Court held that the arbitrator must be permitted to set

new wage rates and write into the agreement new senior-

ee ae oe Eee

7

ity provisions, despite the provisions of Section 5 of the

Arbitration Article (A. 21-22) which provides that the

arbitrator “shall not have the power to add to, subtract

from, or change the terms of the contract” (on which

Employers relied) on the theory that once these subjects

were reopened for negotiation they were no longer a part

of the agreement. The District Court did not explain

how the arbitrator could add new provisions on those

subjects to the agreement, without exceeding the quoted

prohibition in Section 5 of the Arbitration Article. The

District Court found an obligation to arbitrate “disputes”

and ignored the fact that the Grievance and Arbitration

Article (A. 20-22) expressed an agreement to only arbitrate

written grievances claiming contract violations, and makes

no reference to “disputes”. The District Court thus pur-

ported to authorize the arbitrator to re-write the wage

and seniority provisions of the agreement, and to ignore

the contractual agreement of the parties which expressly

stated he “shall not have” that “power.”

After a two to one decision by a panel of the Eighth

Circuit in favor of affirming the District Court’s judgment

(App. E, infra, pp. A28-A38), the case was heard en banc

by the full eight judge panel of the Eighth Circuit United

States Court of Appeals. That resulted in an equally

divided (four to four) decision by the Eighth Circuit (App.

A, infra, pp. Al-A24) which affirmed the District Court’s

judgment ordering arbitration.

Judge Heaney authored the majority opinion for the

three judge panel of the Eighth Circuit (App. E, infra),

and also the subsequent opinion for the four judges who

favored affirmance in the en banc decision for the Eighth

Circuit (App. A, infra). His first opinion of August 16,

1973 stated that the termination clause of the agreement

“does not expressly require the parties to submit disputes

2, a . -

“Ss + O55 Ot OK FRE REE 2 NE OTT IEEE, EO SURE EES BTS

8

arising out of the negotiations to arbitration”. That opin-

ion also recognized that the Grievance and Arbitration

Article “directs its attention to a three-step procedure for

the adjustment of employee grievances and does not specif-

ically state that it is intended to resolve disputes” other

than grievances (Emphasis added). But his subsequent

opinion omits these comments. Both of the opinions by

Judge Heaney approved the District Court’s ordering of

arbitration of “disputes” based on the preamble “Purpose”

clause of the agreement, rather than what was contained

in the Arbitration clause. Judge Heaney’s opinions also

found that the prohibition of power to the arbitrator to

add to, subtract from, or change the agreement were inap-

plicable, thus approving the District Court’s disregard of

that portion of the Arbitration clause for a different reason

than given by the District Court.

Judge Ross authored the dissenting opinion to the

decision of the three judge panel (App. E, infra) and

the decision of the four judges on the en banc panel who

advocated outright reversal of the District Court's decision

(App. A, infra). He concludes that a reading of the con-

tract as a whole shows that at the time it was negotiated

it was not intended by either party to provide for arbitra-

tion of wage disputes arising out of the reopener clause.

Although the parties agreed in the “purpose” clause that

they intended to provide “procedures” for settlement of

“disputes”, Judge Ross finds that the procedure agreed

upon for settlement of disputes arising from the reopener

clause was “negotiation”. He further finds that the Griev-

ance and Arbitration clause shows that it is a narrow

ofie, limited in its scope to “grievances” claiming contract

violations. He points out that the “grievances” are to

be handied by the Union Steward, not by a Union Bar-

gaining Committee which handles the reopened negotia-

tions. He concludes that the Employers did not in fact

agree to arbitrate provisions reopened under the reopener

clause “for negotiation”, but that even if that had not

been clear from the agreement, Section 5 of the Arbitra-

tion clause made plain that the parties had clearly excluded

such issues from the arbitration agreement by its provisions

that the “arbitrator shall not have the power to add

to, subtract from, or change the terms of the contract.”

At Footnote 1 of his opinion for the Court en bane Judge

Ross cites a Decision of the Ninth Circuit which he finds

in conflict with the District Court’s decision on the effect

of the provision in Section 5 of the present arbitration

clause prohibiting the arbitrator from writing new terms

in the agreement. Judge Ross’s opinion discusses at length

the previous Supreme Court decisions on questions of arbi-

trability and states that in no previous case has a court

decided the precise issues involved in this case. His opinion

states the view that the present agreement is distinguish-

able on four grounds‘ from the Supreme Court cases where

arbitration was ordered, and that the present parties clearly

have not contractually agreed to arbitrate wage rates which

are historically matters of bargaining and not subjects

for arbitration.

Judge Webster wrote a separate decision stating his

concurrence with the Heaney opinion, and clarifying his

view as to why he concluded that the Employers should

be ordered to appear before an arbitrator in this case

(App. A, infra). His opinion deals mainly with the Section

5 provisions which prohibit the arbitrator from re-writing

the agreement of the parties, a provision which he states

is not dealt with in the opinion by Judge Heaney and

which Judge Ross found of critical importance. Judge

Webster states that he is not prepared to assume that

4. See App. A, i pp. Al3-A24, ____ F.2d at pp. ____; 85

LRRM at pp. 2286-2287.

SEE Se Re Sa BE es oes Se

10

the arbitrator will abuse or exceed his power under the

agreement by re-writing the contract or adding new pro-

visions to it. He concludes that the arbitrator may not

necessarily grant the relief requested by the Union, of

imposing new contract terms on the Employers, but that

he might instead (a) order the parties to resume bargain-

ing, or (b) hold that he is without power to grant cer-

tain relief requested by the Union. Judge Webster states

that if the arbitrator were to exceed the limitations of

his powers contained in the agreement of the parties, then

the Employers could reapply to the District Court for

an order to vacate the arbitrator’s decision on that ground.

Despite the Views expressed in his separate concurring

opinion, Judge Webster’s concurrence in Judge Heaney’s

opinion caused the Eighth Circuit to reach an equally

divided (four to four) decision which resulted in affir-

mance of the District Court’s summary judgment ordering

arbitration of the reopened issues. Judge Ross, Chief

Judge Mehaffy and Judges Gibson and Stephenson ex-

pressed the view that the District Court’s judgment should

be reversed outright. Judges Heaney, Bright and Lay

expressed the view that the District Court was correct

in ordering the Employers to arbitrate the reopened issues,

without regard to the limitations on the arbitrator’s powers

in Section 5 of the arbitration clause. Judge Webster

concurred with Judges Heaney, Bright and Lay, on the

view that the Employers should be compelled to appear

before the arbitrator, but stated the view that the arbitra-

tor still could not exceed the powers as limited in Section

5 of the arbitration clause, concluding that the arbitrator

could order the Employers to resume the negotiations

which the Employers have been insisting on all along,

or could rule that the Employers’ position was correct

that the arbitrator has no power to grant the relief re-

quested by the Union. Judge Webster also indicated that

REP FE ARE ster —— —

11

the arbitrator might rule that the absolute no-strike clause

is inapplicable and allow the Union to strike, but did

not say how the arbitrator could so rule without violating’

the Section 5 prohibition that he shall not subtract terms

from the agreement.

REASONS FOR GRANTING THE WRIT

The judgment below, in ordering the Employers to

submit midcontract issues of wages and seniority which

were reopened “for negotiation” represents the first re-

ported federal court decision which has ordered an em-

ployer to submit such issues to binding arbitration.° The

judgment results from a misapplication of the Supreme

Court’s decisions on the role of federal district courts in

determining questions of arbitrability. The District Court’s

judgment has been affirmed by an equally divided decision

_ of the United States Court of Appeals for the Eighth Cir-

cuit en banc, with three judges apparently in favor of the

District Court’s theory, four in favor of outright reversal

and Judge Webster’s separate opinion in which he con-

curred in the opinion for affirmance but indicated a view

that any arbitrator’s decision could be the subject of fur-

ther court review if the arbitrator exceeds his authority.

The District Court’s judgment in this case (which has

become law as a result of the equally divided decision of

the Eighth Circuit en banc) is of highly questionable pro-

priety. The strong division of the Eighth Circuit en banc

demonstrates the importance of the questions presented,

and the necessity for this Court to review these questions

and render a decision which will clarify the role of federal

courts in determining questions of arbitrability in cases

5. See discussion by Judge Ross (App. A, infra, pp. A21-A24),

wiih F.2d at , 85 LRRM at 2287 (at Note 4 of his opinion).

“eR ROR eee >

PRLS EDO ae eee

12

involving issues reopened for negotiations in the middle

of a contract containing a no-strike clause, especially in

cases like this where the arbitration article provides for

arbitration only of “grievances” claiming contract viola-

tions and where no grievance exists and no contract vio-

lation has been alleged.

The judgment below represents a threat to the con-

tinued inclusion by Employers of arbitration clauses in

collective bargaining agreements. If Employers cannot be

assured that they will not be ordered to appear before

arbitrators every time the Union claims a dispute over

which the Union cannot strike, it may be too burden-

some for Employers in the future to agree to any arbitra-

tion clause at all. This, of course, would result in the de-

mise of arbitration of the type that is encouraged by fed-

eral policy. 29 U.S.C. § 173(d). That policy favors arbi-~

tration only when that method has been “greed upon by

the parties” for the settlement of “grievance disputes”

arising “over the interpretation or application” of existing

collective bargaining agreements.°®

The judgment below represents a serious threat to

the continued vitality of labor arbitration agreements for

settlement of “grievances” claiming contract violations,

since the lower courts have inferred (despite the admitted

absence of any express agreement between the parties to

arbitrate such disputes) that the inclusion of the griev-

ance-arbitration clause must necessarily be construed as

an agreement to arbitrate disputes-other-than-grievances

over matters which have been historically negotiable and

which the parties have agreed in their contract to reopen

6. This Court has recognized that “Every grievance in a

sense involves a claim that management has violated some pro-

vision of the agreement.” Steelworkers v. Warrior and Gulf Navi-

gation Co., 363 U.S. 574, 584 (1960).

As BPP a og Str ee * eas Be The TRAP OI ae _—

13

in the middle of the contract “for negotiation”. The judg-

ment below violates the command of Section 8(b) (1) (B)

of the N.L.R.A., 29 U.S.C. § 158(b) (1) (B), that an Em-

ployer shall not be coerced in the selection of his bar-

gaining agent,’ and violates the command of Congress in

Section 8(d) of the N.L.R.A., 29 U.S.C. § 158(d), that sub-

stantive contract terms shall not be imposed on the par-

ties to the bargaining process by official compulsion. See

NLRB v. Burns International Security Service, 406 U.S.

297 (1972); H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970);

S. Rep. No. 573, 74th Cong., Ist Sess. 12 (1935).

The judgment below demonstrates the existence of con-

fusion among the Courts throughout the United States as

to their role in determining what issues the parties to col-

lective bargaining agreements have agreed to submit to

binding arbitration. The Supreme Cou: 3 2arlier opinions

have indicated that it is the duty of the Courts (not the

province of arbitrators) to determine the question of sub-

stantive arbitrability. John Wiley & Sons v. Livingston,

376 U.S. 543, 546-547 (1964); Atkinson v. Sinclair Refin-

ing Co., 370 U.S. 238, 241 (1962); Steelworkers v. Warrior

& Gulf Navigation Co., supra. While the lower courts in

this case, and in other cases cited in the opinions on which

we seek review, have recognized this duty as an abstract

principle of law, those courts have demonstrated a con-

fusion as to how this duty is to be fulfilled in the context

of a particular contract and a particular issue which a

party claims a right to have arbitrated.

7. The District Court’s summary judgment ordering arbitra-

tion which has been affirmed below, itself coerces the Employers

in this case at the Union’s request as to the selection of their bar-

gaining agent, since the judgment orders the Employers to permit

an arbitrator to determine the negotiable issues in this case by an

arbitral decree.

FR ee ER eR SS ARR BE Po EP ERR

Se ES

14

The Supreme Court’s decisions cited above have held

that in order to determine the question of substantive arbi-

trability it is the role of the federal courts to isolate

the particular issue which a party seeks to arbitrate and to

enter a judgment as to whether that “particular issue” is

or is not arbitrable. But the lower courts have overlooked

the scope of their role, and have developed an unwar-

ranted presumption of an agreement to arbitrate any is-

sue where avy arbitration clause exists. This results from

their confusion over the different principle enunciated in

the Supreme Court cases, where the Court has held that

once there is found an express agreement to arbitrate a

particular issue, then the burden shifts to the party oppos-

ing arbitration to demonstrate that the issue (while fall-

ing within the subject matter that is covered by the arbi-

tration agreement), has been specifically excluded from the

jurisdiction or power of the arbitrator under the agree-

ment by some other provision.

In confusing these two separate principles which have

been announced by the Supreme Court, the lower courts

have shifted the entire burden on the party opposing arbi-

tration to show that no agreement to arbitrate the particu-

lar issue exists (which burden has always been left on the

Plaintiff who seeks to compel arbitration by previous Su-

preme Court decisions). The judgment below represents

the most extreme application yet made by a court of the

presumption rule so as to create by inference an obliga-

tion to arbitrate an issue which the parties have not ex-

pressly agreed to arbitrate, since the issue here is one the

parties did expressly agree to “negotiate” and since Sec-

tion 8(d) of the N.L.R.A. reveals that on subjects of nego-

tiation there shall be no compulsion as the judgment be-

low seeks to impose.

OES é RECON A IS Ss a. DIP Oy ETRE SE IIR

IMLS ELEN LED RES LES

15

The Supreme Court cases hold that where an agree-

ment is found to exist whereby the parties have agreed to

arbitrate a particular grievance issue, then a party oppos-

ing arbitration cannot defeat that contractual obligation

by inference. Where the parties had agreed to arbitrate

“any disputes, misunderstandings, differences or griev-

ances”, the Union’s request for arbitration of a grievance

claiming his reemployment rights under the contract had

been violated cannot prevent arbitration by inferring that

the management rights clause excludes such grievance

from the arbitrator’s power. Steelworkers v. American

Mfg. Co., 363 U.S. 564 (1960). Where the parties have

agreed to arbitrate “differences * * * as to the meaning

and application of the provisions of this Agreement” and

the Union claims a right to arbitrate a grievance claiming

that the Employer had infringed on job rights by unlaw-

ful subcontracting out of work, the Employer cannot infer

that it is not obligated to arbitrate such claim of contract

violation by reliance on a management rights clause exclud-

ing from arbitration “matters which are strictly a function

of management”. Steelworkers v. Warrior & Gulf Naviga-

tion Co., supra. In those cases the Court held that where

the agreement to arbitrate was broad enough to cover the

issue in question the Employer who opposed arbitration

of such issue may not be excused by an exclusion clause

which is vague.

But the lower courts have overlooked the fact that

the Supreme Court has stated earlier in its opinions that

“the judicial inquiry under § 301 must be strictly confined

to the question whether the reluctant party did agree to

arbitrate the grievance or agreed to give the arbitrator

power to make the award he made.” Steelworkers v. War-

rior and Gulf Navigation Co., supra at 582, 584-585. If

the agreement does not give the arbitrator that jurisdic-

16

tion or power, then obviously the Court’s function is ful-

filled by denying arbitration, but the lower courts have

inferred agreements to arbitrate in cases like this one

where the parties admittedly have not expressly agreed to

arbitrate “disputes” other than grievances and where ad-

mittedly no grievance exists, and there is no claim of any

contract violation. ;

Under the tests employed by the lower courts in this

case, collective bargaining agreements cease to have any

meaning or stability. No matter what the contract pro-

vides as to wages or on other subjects, if the Union ex-

presses a dissatisfaction with the agreement, the Union can

claim a “dispute” exists (even though it does not claim

the Employer has violated any provision of the agree-

ment). If a dispute exists, and if the Union cannot strike

to resolve the dispute, the lower courts would apparently

rule that ipso facto the dispute is arbitrable if there is any

arbitration clause at all (even if it is limited to agreeing

to arbitrate “grievances” and none exists, and even if the

arbitrator, as here, is prohibited from adding to, subtract-

ing from, or changing the agreement). Since almost every

contract provides that negotiations for new contract pro-

visions may commence during the last 60 days of the exist-

ing contract, it would seem to follow that once those nego-

tiations had commenced if no agreement was reached after

a few meetings (and even before an impasse is reached, as

was the case here), the Union could claim a right to have

an arbitrator establish the new contract’s terms and pro-

visions, so long as the Union demands arbitration before the

contract expires and while it cannot strike over the negoti-

ation dispute. That would certainly be a result which is

in direct conflict with the federal policy of free collective

bargaining, as commanded by Section 8(d) of the N.L.R.A.,

but that absurd result would be no more in conflict with

that policy than is the result reached below.

17

The judgment below is in conflict with the decisions

of this Court in the foregoing respects, as well as with the

Decisions of other Circuits. See the following cases where

the Courts held that where a party secking arbitration

seeks to have the arbitrator violate the prohibition that

he not seek to add to, subtract from, or change the agree-

ment, the issue is obviously not one which the parties have

agreed to submit to arbitration. West Coast Telephone Co.

v. IBEW Local 77, 431 F.2d 1219 (9th Cir. 1970) (employ-

er’s attempt to require union to arbitrate question of

whether wage rates set forth in contract accurately re-

flected amounts agreed upon was held outside arbitrator’s

power, and thus non-arbitrable); RCA v. Association of

Scientists, 414 F.2d 893 (3rd Cir. 1969) (affirming Dis-

trict Court’s decision that dispute over “whether or not a

new collective bargaining agreement contains terms cov-

ering layoff procedure” was not arbitrable in view of

arbitration clauses prohibition against adding to, subtract-

ing from, or changing terms of agreement); Federal Labor

Union v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir.

1970) (affirming decision that contract provision recog-

nized principle of equal pay for employees doing equal

work with equal ability and providing that “Company

agrees to make such adjustments in the present rate or

rates for job classifications to achieve the foregoing ob-

jective as may be agreed upon by the parties” did not

authorize arbitrator to decide and impose upon parties the

proper rates to be paid particular employees, but left

such determination to negotiation by parties) ; International

Union of Operating Engineers, Local 279 v. Sid Richardson

Carbon Co., 471 F.2d 1175 (5th Cir. 1973) (where Employer

was granted summary judgment against Union’s Complaint

for order to arbitrate a representation question where

Union sought to have arbitrator exceed prohibition on his

adding to, subtracting from or changing the agreement as

18

written by the parties); and International Union of Elec-

trical Workers v. General Electric Co., 407 F.2d 253 (2d

Cir. 1968), cert. den. 395 U.S. 904 (1969) (where the

Court reversed the District Court’s order that certain

piecework wage rates be set by an arbitrator where the

Union had not filed a grievance claiming a contract viola-

tion as required by the arbitration agreement before any

duty to arbitrate existed).

This is not a case where an Employer seeks to evade

an agreement to arbitrate a claim of contract violation,

as was involved in the American Mfg. Co. and Warrior

cases. It is not a case where the Employer insists on an

absolute right to determine the issues in question, without

consultation or negotiations with the Union. Rather, it is

a case where the parties have agreed to negotiate, and the

Union has violated its duty to negotiate in good faith by

hiding behind the cloaks of the federal courts and behind

‘a false presumption that all disputes which are non-strike-

able are ipso facto arbitrable.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

_ _Donap W. Jones

PREWITT, JONES & KARCHMER

110 Landmark Building

Springfield, Missouri 65806

Attorneys for Petitioners,

Robert M. Mahoney, et al.

April 2, 1974

pte

ny —

Al

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 72-1731

Laundry, Dry Cleaning and Dye House Workers

International Union, Local 93, of Springfield,

Missouri,

Appellee,

Vv.

Robert M. Mahoney, Joyce B. Mahoney, Michael

Mahoney, Patrick Mahoney, and Jeffrey Mahoney,

d/b/a Bormon Investment Company, and Colonial

Linen Service,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri.

Submitted: November 12, 1973

Filed: January 22, 1974

Before MEHAFFY, Chief Judge, GIBSON, LAY, HEANEY,

BRIGHT, ROSS, STEPHENSON and WEBSTER, Cir-

cuit Judges, en banc.

HEANEY, Circuit Judge, with whom LAY, BRIGHT and

WEBSTER, Circuit Judges, join.

A2

This matter comes before the Court en banc on a pe-

tition for rehearing. The sole issue is whether the trial

court erred in requiring the parties to a collective bar-

gaining agreement to submit a mid-contract wage dispute

to binding arbitration.’

On August 8, 1968, the Union entered into a collective

bargaining agreement with the then owner of the business.

Article XX of the agreement provides:

Section 1. This agreement shall remain in full

force and effect until August 8, 1973, and from year

to year thereafter, unless sixty (60) days prior to

August 8, 1973, or any year thereafter, the Union noti-

fies the Employer or the Employer notifies the Union

of its desire to terminate or modify this Agreement.

This notice must be written.

Section 2. Either the Employer or the Union shall

have the right as of August 8, 1971, to reopen for ne-

gotiation on the subject of wages and seniority only,

upon either party giving written notice to the other

at least sixty (60) days prior to such reopening date.

In the absence of such notice, the existing conditions

shall continue to remain in effect until the expiration

date of the Agreement.

Thereafter, most of the assets of the business were sold to

the Bormon Investment Company, and that firm became

obligated to abide by the terms of the agreement as a suc-

cessor employer.

1. Initially, a divided panel affirmed the District Court hold-

ing that the parties were required to — the dispute to binding

arbitration. Laundry, Dry Cleaning and Dye House Workers In-

ternational Union, etc. v. Robert M. Mahoney, et al., No. 72-1731,

filed August 16, 1973 (unpublished).

EE ENE Ses -- POL TS OEE ELL GOO EERIE ALALEG NN TEE ELE te OE

nee

A3

The Union and the Employer exercised their option

to reopen the contract on wages and seniority by giving a

timely notice. The parties were unable to reach an agree-

ment on either issue. The Union demanded that the un-

resolved issues be submitted to arbitration. The Employer

refused on the grounds that it was not obligated to arbi-

trate these issues. The Union then brought an action seek-

ing to require the Employer to submit the dispute to arbi-

tration.

The agreement generally establishes wage rates and

working conditions. It specifically provides:

ARTICLE I.

Purpose

Section 1. It is the intent and purpose of the

parties hereto, to set forth herein their basic agree-

ment covering wages, hours of work, and conditions

of employment to be observed between the parties

hereto, and to provide procedures for the prompt, and

equitable adjustment of all grievances and disputes

arising between the Employer and the Union or any

employee or employees covered by this Agreement.

ee

ARTICLE XIII.

No Strike or Lockout

Section 1. There shall be no strikes, stoppages,

slowdowns, or concerted activity interrupting or in-

terfering with production or lockouts, for any reason

whatsoever during the life of this Agreement.

It also contains a grievance and arbitration clause

which reads as follows:

a i ee oe.

ae Prey ee

A4

ARTICLE XIV.

Grievance and Arbitration

Section 1. It is hereby agreed that the Union

may have one (1) duly accredited representative to

be known as the “Steward” in each plant to be se-

lected by the Union. It shall be his or her duty to

receive complaints and to present them to the man-

agement. ** =

Section 2. In order to determine the existence

and/or validity of a grievance, the Steward shall no-

tify the Plant Manager or his designated representa-

tive of the charge by an employee, and as soon as

practicable, the Steward and the Employer repre-

sentative shall discuss the matter with the view of

resolving the issue if possible. * * *

Section 3. If the grievance is not settled in the

manner set forth in Section 2 within two (2) working

days after the Steward has first discussed it with the

Plant Manager, it shall be reduced to writing and con-

sidered between the Business Agent and Company

representatives.

Section 4. If not settled within five (5) work-

ing days as set forth in Section 3, the matter shall be

referred to arbitration.

Section 5. Each party shali select an arbitrator

[.] * * * Should there be no agreement between the

two arbitrators as to the third arbitrator, application

shall be made to the Federal Mediation and Concili-

ation Service in Washington, D. C., for a panel of five

(5) nominees. The parties shall alternate in striking

two names each and the remaining shall be the im-

partial arbitrator. The arbitrator shall not have the

_- rom ae - PORT SATO OO ee pees era le) © ee

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power to add to, subtract from, or change the terms

of the contract. The decision of a majority of the

panel shall be final and binding. * * *

ARTICLE XVIII.

Savings Clause

Section 1. If any law now existing or hereinafter

enacted, or any proclamation, regulation, or edict of

any state or national agency shall invalidate any por-

tion of this Agreement, the entire Agreement shall not

be invalidated, and either party hereto, upon notice

to the other, may reopen for negotiation the invali-

dated portion, and if agreement thereon cannot be

reached, within thirty (30) days, either party may

submit the matter to arbitration as herein provided.

The matter was submitted to the trial court on cross-

motions for summary judgment. The court initially de-

termined that the question of arbitrability was for it to

decide. It then held, on the authority of the United Steel

Workers v. Warrior and Gulf Navigation Co., 363 US.

574 (1960), that the dispute was arbitrable because no

forceful evidence of an intent or purpose to exclude the

dispute from arbitration was evidenced.

The Employer argues on appeal: (1) that they are

under no obligation to arbitrate any wage and seniority

issues; (2) that their only obligation under the agreement

is to negotiate on the two issues, and they have fulfilled

that obligation; (3) that arbitration is only available to

resolve employee grievances, ad then only after such

grievances have been proces.ed in accordance with Sec-

tions 1, 2, 3 and 4 of Article XIV of the agreement; and

(4) that, here, no grievance exists, and that the dispute

LS ET Re EE A RLS RES SEE PRS Eee, Se STS LAS

A6

between the Employer and the Union was not processed

in accordance with the above sections.

The trial court correctly held that the issue of arbi-

trability was one for it to decide. John Wiley & Sons v.

Livingston, 376 U.S. 543 (1964); Drake Bakeries v. Local

50, 370 U.S. 254 (1962).

The trial court also properly decided that the mid-term

contract dispute between the Employer and the Union

over wages and seniority is an arbitrable one.

Warrior teaches:

The Congress, however, has by §301 of the Labor

Management Relations Act, assigned the courts the

duty of determining whether the reluctant party has

breached his promise to arbitrate. For arbitration is

a matter of contract and a party cannot be required

to submit to arbitration any dispute which he has not

agreed so to submit. Yet, to be consistent with con-

gressional policy in favor of settlement of disputes

by the parties through the machinery of arbitration,

the judicial inquiry under §301 must be strictly con-

fined to the question whether the reluctant party did

agree to arbitrate the grievance or agreed to give the

arbitrator power to make the award he made. An

order to arbitrate the particular grievance should not

be denied unless it may be said with positive assur-

ance that the arbitration clause is not susceptible te

an interpretation that covers the asserted dispute.

Doubts should be resolved in favor of coverage.

* * x

* * * In the absence of any express provision ex-

cluding « particular grievance from arbitration, we

think only the most forceful evidence of a purpose to

exclude the claim from arbitration can prevail, par-

A7

ticularly wheie, as here, the exclusion clause is vague

and the arbitration clause quite broad. Since any at-

tempt by a court to infer such a purpose necessarily

comprehends the merits, the court should view with

suspicion an attempt to persuade it to become entan-

gled in the construction of the substantive provisions

of a labor agreement, even through the back door of

interpreting the arbitration clause, when the alterna-

tive is to utilize the services of an arbitrator.

United Steel Workers v. Warrior and Gulf Navigation Co.,

supra at 582, 584-585. Accord, Local Union No. 4, IBEW,

AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th

Cir. 1972); Builders Ass’n of Kansas City v. Greater Kan-

sas City Lab. D. C., 326 F.2d 867 (8th Cir.), cert. denied,

377 U.S. 917 (1964)?

We are convinced, as was the trial court, that it can-

not be said with positive assurance that the arbitration

clause is not susceptible to an interpretation that covers

the asserted dispute.* Although: the “Grievance and Ar-

2. See, 85 HARV. L. REV. 636 (1972); Griswold, The Su-

preme Court 1959 Term, 74 HARV. L. REV. 81, 181 (1960); 59

MICH. L. REV. 454 (1961); 45 MINN. L. REV. 282 (1960); The

“ne Law of Labor Injunctions, 79 YALE L. J. 1593

3. In Hughes Tool Co., 36 Lab. Arb. (1960), an arbitrator

reached a result generally inconsistent with that reached here.

The arbitrator stated:

Both parties referred in their respective arguments to

the recent decisicns of the United States Supreme Court in

* * * American Manufacturing Co., [and] Warrior * * *.

Those cases all dealt, however, with the power of federal

courts, rather than with the discretion of arbitrators. Con-

struing those cases in a way most favorable to the Union here

involved would lead at most to the conclusion that if the

parties had litigated this issue in federal court instead of

submitting it to private arbitration, the court would have

ruled that the issue was arbitrable; or that, conversely, if the

arbitration decision in this case were in favor of arbitrability,

the court would decline to vacate it on review.

Id. at 1129.

ot te 2 TEN ye

A8

bitration” clause speaks of employee grievances, the “pur-

pose” clause of the agreement asserts that the agreement

is intended to provide “procedures for.the * * * equitable

adjustment of all grievances and disputes arising between

the Empioyer and the Union * * *”. 'f the contract is to

be read as a whole, as it must, Mon.<.a-Dakota Utilities

Co. v. N.L.R.B., 455 F.2u 1088 (8th Cir. 1972), effect

should be given to this language. The savings clause

speaks of submitting matters other than grievances to

“arbitration as herein provided,” thus negating an intent

to limit the arbitration clause in the manner suggested by

the appellant. Moreover, the collective bargaining agree-

ment includes an absolute “no strike, no lockout” clause.

This inclusion lends support to the view that the collec-

tive bargaining agreement was intended to completely ef-

fectuate the federal policy of promoting industrial stabili-

zation through collective bargaining.‘

In summary, we not only fail to find forceful evidence

of a purpose to exclude the mid-contract wage dispute

from arbitration, but we find evidence of a contrary pur-

pose. The Warrior rule is thus triggered.*

4. * * * The present federal policy is to promote industrial

stabilization through the collective bargaining agreement. * * *

Complete effectuation of the federal policy is achieved

when the agreement contains both an arbitration provision

for all unresolved grievances and an absolute prohibition of

strikes, the arbitration agreement being the “quid pro quo”

for the agreement not to strike. Textile Workers v. Lincoln

Mills, 353 U.S. 448, 455.

United Steel Workers v. Warrior and Gulf Navigation Co., 363

U.S. 574, 578 (1960).

5. The following cases are distinguishable on their facts:

West Coast Telephone Co. v. Local U. No. 77, Int. Bro. of Elec.

Wkrs., 431 F.2d 1219 (9th Cir. 1970); Federal Labor Union No.

18887 v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir. 1970);

Radio Corp. of Am. v. Association of Scientists & Pro. Eng. P.,

414 F.28 “393 (3rd Cir. 1969). In each case, the collective bargain-

ing agreement made it clear that the issue the Union sought to

(Continued on following page)

A9

Concern has been expressed that the effect of this

opinion will be to make mid-term wage disputes in multi-

year contracts subject te arbitration whenever a collec-

tive bargaining agreement contains an arbitration and a

no-strike clause. We find no cause for such concern. The

pariies to a collective bargaining agreement can, by plain

language, exclude such dispute from arbitration. They

can lift the “no strike, no lockout” pledge in such circum-

stances, see, United Steel Workers v. Warrior and Gulf

Navigation Co., supra, n.5 579, or permit the pledge to re-

main in effect and require the dispute to be resolved by

bargaining or not at all. All that is necessary is that the

parties make their intent to exclude arbitration clear. They

have not done so here.

We find no merit to the Employer’s contention that

the judgment against three minor defendants should be

set aside because it was imposed on them without the prior

appointment of a guardian ad litem. The first exception

to Rule 17(b), 28 U.S.C., permits a partnership to be sued

in its common name for the purpose of enforcing against

it a substantive right existing under the laws of the United

States. The right to arbitrate is such a right.

Moreover, the trial court properly found that the mi-

nors’ interests were adequately protected by the presence

of their parents as defendants. See, Westcott v. United

States Fidelity and Guaranty Company, 158 F.2d 20 (4th

Cir. 1946); Rutland, Administrator v. Sikes, et al., 203

F.Supp. 276 (E.D. S.C.), aff'd, 311 F.2d 538 (4th Cir. 1962),

cert. denied, 374 U.S. 830 (1963).

Footnote continued—

arbitrate was, in fact, non-arbitrable. See also, Firestone Tire

and Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th

a _ Ford v. General Electric Co., 395 F.2d 157 (7th Cir.

DPE LE IOI II LN ai Ih hs apn eae a ta ty

Al0

The judgment below is affirmed by an equally di-

vided court.

WEBSTER, Circuit Judge, Concurring.

I concur in Judge Heaney’s opinion on the issue of

arbitrability, and in the result. Because Judge Heaney’s

opinion does not deal with the contractual limitations on

the powers of the arbitrator," and because Judge Ross sees

this clause as critical to his analysis, I feel obliged to

state my views on that subject.

Given the now clearly stated Congressional and judi-

cial policy favoring the use of arbitration (in exchange

for a no-strike clause) in the collective bargaining arena,

it does not follow that the arbitrator can or will in each

case grant the relief sought by the party aggrieved. We

do not know, for example, whether the arbitretor will de- -

termine that a reopened issue is an exception to the no-

strike provision. Thus, he might, under appropriate find-

ings, order the parties to resume bargaining or hold that

the union is free to strike absent a resolution of the dis-

pute. Or he may, upon an examination of the contract in

the light of the federal labor common law, Textile Work-

ers v. Lincoln Mills, 353 U.S. 448 (1957), hold that he is

without power to grant certain relief requested by the

union.”

In F & M Schaefer Brewing Co. v. Local 49, Interna-

tional Union of Unitea Brewing, etc., 420 F.2d 854 (2d

1. * * * the arbitrator shall not have the power to add to,

subtract from, or change the terms of the contract. The de-

cision of a majority of the panel shall be final and binding.

Article XVII, Section 5

_ 2. See Note, Mid-Term Modification of Terms and Condi-

tions of Employment, Duke L.J. 813, 825-31 (1972).

LEENA EDN EE ONE: CEE LR BE I 9

All

Cir. 1970), the court reversed the trial court’s order stay-

ing arbitration. The trial court had held that since the

arbitrator was not given the power to fix new rates, sub-

mission of the grievance to him would require him to ex-

ceed his powers. The Second Circuit disagreed, saying

that this question “would go only to the remedy... .”

420 F.2d at 856.

[I]n Torrington, we pointed out that the question of

the arbitrator’s authority to make a particular award

was best left to the arbitrator initially, so that the

court could receive “the benefit of the arbitrator’s

interpretative skills as to * * * his contractual au-

thority.” 362 F.2d at 680 n.6.* Here, we are asked to

prevent arbitration in the first place. To do so on the

theory that we should not require a useless act mis-

conceives the possibilities open to an arbitrator and ig-

nores the explicit lesson of the Trilogy .. . that

“(t]he processing of even frivolous claims may have

therapeutic values.”

420 F.2d at 856. (footnote added)

In Tobacco Workers International Union, Local 317

v. Lorillard Corp., 448 F.2d 949 (4th Cir. 1971), the Fourth

Circuit construed an almost identical contractual limita-

tion in this way:

The quoted sentence does not, we think, limit the

arbitrator’s “jurisdiction” over those grievances which

are subject to arbitration. It is not a limitation on

arbitrability, but is instead merely a limitation on

3. Torrington Co. v. Metal Products Workers, 362 F.2d 677,

680 n.6 (2a Cir. 1966):

[W]e think more exhaustive review of this question is ap-

propriate after the award has been made than before the

award in a suit to compel arbitration. . . .

Al2

the arbitrator’s power to fashion an award. Carey v.

General Electric To., 315 F.2d 499 (2d Cir. 1963),

cert. denied, 377 U.S. 908 . . . (1964). As such it is

inappropriate for a court to decide that such a clause

excludes the remedy sought prior to arbitration. It is

best to leave this question to the arbitrator initially

in order to receive “the benefit of the arbitrator’s in-

terpretive skills as to * * * his contractual au-

thority.” Torrington Co. v. Metal Products Workers

Union Local 1645, 362 F.2d 677, 680 n.6 (2d Cir. 1966).

Id. at 955.

And in International Ass’n of Machinists v. Howmet

Corp., 466 F.2d 1249 (9th Cir. 1972), the Ninth Circuit

said:

We agree with the Fourth Circuit that a clause lim-

iting the power of the arbitrator to add to, subtract

from, or alter the provisions of the agreement does

not affect the jurisdiction of the arbitrator, but merely

limits his power to fashion an award. Tobacco Work-

ers International Union, Local 317 v. Lorillard Corp.,

4 Cir., 1971, 448 F.2d 949, 955.

Id. at 1252-53.

The point, it seems to me, is that in the case there is

no “clear and unambiguous” evidence of non-arbitrability,*

and we are bound by the Steelworkers’ trilogy in such cir-

cumstances to hold the issue arbitrable, as Judge Heaney

has well demonstrated. We are not to reach the merits by

interpretating the scope of the arbitrator’s power to award

specific relief, or by drawing an inference of non-arbitra-

bility from a contractual limitation on his power in rela-

tion to his duties. The courts will be available to test the

4. Procter & Gamble Independent Union v. Procter & Gamble

Mfg. Co., 298 F.2d 644 (2d Cir. 1962).

Ss al aa LIP LEPE ION I LGB WAIT ROBLES CF eps FSM Se

Seoaene SE cobeee

Al3

lawfulness of the arbitrator’s decision in an enforcement

proceeding.” We need not presently assume that he will

abuse his contractual power to resolve disputes, nor should

the scope of that power be confused with the arbitrability

of the dispute.°

ROSS, Circuit Judge, with whom MEHAFFY, Chief Judge,

GIBSON and STEPHENSON, Circuit Judges, join.

We accept the statement of the case contained in Judge

Heaney’s opinion. However, we believe that it is clear

from reading the contract as a whole that at the time it was

negotiated it was not intended by either party to provide

for arbitration of wage disputes arising out of the re-

opening clause. It is clear from Judge Heaney’s opinion

that Articles I, XIII, XIV, XVIII, and XX are the clauses

he relies upon in his determination that the arbitration

clause is susceptible to the interpretation that it covers

wage disputes under the reopening clause. We do not read

those clauses in the same way.

Article I, the purpose clause, merely indicates that the

contract as a whole, shall “provide procedures for the

prompt, and equitable adjustment of all grievances and dis-

putes arising between the Employer and the Union or any

employee or employees covered by this Agreement.” It

does not say nor imply, in our opinion, that all disputes

shall be submitted to arbitration. The contract specifically

5. See United Steelworkers of America v. Enterprise Wheel

& Car Corp., 363 U.S. 583, 597 (1960).

6. See Safeway Stores v. American Bakery & Confectionery

Workers International Union, Local 111, 390 F.2d 79, 81 (5th Cir.

1968): “[T]here may be in these controversies two distinct prob-

lems. One is whether the grievance is arbitrable. The other is

whether the award of the arbiter is to be enforced. To order arbi-

tration is not to approve in advance all, or for that matter, any

thing that the arbiter does.”

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provides for negotiation of wage disputes on reopening in

Article XX, and arbitration of grievances in Article XIV.

A careful reading of Article XIV, as heretofore set

forth, shows clearly that it is a narrow arbitration clause

limited in its scope to grievances between the employees

and management. The reference to the Steward in Section

1, conferences between the Steward and the Plant Manager

in Section 2, written submittion and consideration by the

Business Agent and Company representatives in Section

3, and reference to arbitration if there is no solution after

five (5) working days in Sections 4 and 5 make it abso-

lutely clear that the intention of the parties was to provide

‘for arbitration of employee grievances and not wage dis-

putes on reopening. There is no reference in this clause to

a Union Bargaining Committee—only to a Union Steward

and Union Business Agent, and if there was any doubt

whatsoever that this clause was not intended to apply to

wage negotiations, which we do not believe there is, it is

laid to rest finally and absolutely by the insertion of this

sentence: “The arbitrator shall not have the power to add

to, subtract from, or change the terms of the contract.”!

1. See West Coast Telephone Co. I.B.E.W., Local 77, 431

F.2d 1219, 1221 (9th Cir. 1970), where the court held that a wage

issue could not be resolved by arbitration because of a similar

clause. Judge Heaney’s opinion, in footnote 5, indicates that this

case can be distinguished on its facts since “the collective bargain-

ing agreement made it clear that the issue the Union sought to

arbitrate was, in fact, non-arbitrable.” But the reason the court

held the wage dispute not to be arbitrable, was the inclusion of

just such, a clause as is present in this contract. The court stated:

Thus the company seeks a change in the terms of the

written agreement. It can be said with positive assurance

that such an issue is not arbitrable under the agreement in

question. The arbitration clause of the contract expressly

provides that the arbitrator “shall have no power to destroy,

change, add to or delete from its terms.”

The district court correctly determined that the issues

were not arbitrable and that tne court should proceed to a

consideration of the reformation issues. (Footnote omitted.)

Id. at 1221. .

(Continued on following page)

TEA

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Dos ea Sar een

Al5

Nothing in Judge Heaney’s opinion or in the briefs pro-

vides a logical explanation of how an arbitrator can change

the wages of the employees of this company without

specifically violating this very explicit provision of the

Agreement.

Article XVIII, the savings clause, is an express recog-

nition by the parties that the arbitration clause does not

cover all disputes under the contract. It makes an excep-

tion to the narrow scope of arbitration provided in Article

XIV and specifically provides for arbitration in cases in

which some portion of the Agreement is invalidated by

law. The failure of the parties to similarly provide for

arbitration of wage disputes on reopening in Article XX,

after providing for it specifically for employee grievances

and invalidation of a portion of the contract by law, is an

additional indication to us that it was not intended to apply

to wage disputes on reopening.

It is apparent to us from an examination of the entire

contract that the Union, having for some reason failed to

reserve the right to strike if wage negotiations on reopening

proved fruitless, decided to ask the federal cOurts to make

up for this negotiating deficiency by construing the con-

tract to include wage disputes as an arbitrable matter, in

Footnote continued—

Judge Webster, in his concurring opinion, and without ex-

pressing an opinion as to the legality of any change to be ordered

by the arbitrator, suggests that the arbitrator may have several

options. These include an order to resume bargaining or an

arder holding “the union is free to strike.” Any order permitting

the union to strike would violate the no-strike clause which pro-

hibits strikes “for any reason whatsover” and would be just as

much a prohibited change in the terms of the contract as raising

the wages set forth therein. The ~-~sestion also is not practical

in view of the fact that the contr as due to expire on August

8, 1973. Realistically, the only opi... open to the arbitrator are

to raise wages or let them remain the same and that decision

snculd be made now rather than forcing the parties to possibly

go through an enforcement proceedings after the award is made.

Al6

direct contravention of the obvious intent of the Agree-

ment.

The only possible valid reason we can perceive for re-

quiring arbitration of this wage dispute is if Steelworkers

v. Warrior & Gulf Co., 363 U.S. 574 (1960), and Steel-

workers v. American Mfg. Co., 363 U.S. 564 (1960) stand

for the proposition that the failure to specifically exclude

wage disputes from arbitration in any labor contract auto-

matically makes wage disputes subject to arbitration. We

do not believe this was the intent of either case.

The Steelworkers cases are often cited for the proposi-

tion that the no-strike clause is the quid pro quo for the

arbitration clause and Warrior is cited for the proposition

that arbitration should be required “unless it may be said

with positive assurance that the arbitration clause is not

susceptible of an interpretation that covers the asserted

dispute.” Steelworkers v. Warrior & Gulf Co., supra, 363

U.S. at. 582-583. But we should remember that this lan-

guage must be read in light of the facts of each case and

in light of other equally strong language that “a party

cannot be required to submit to arbitration any dispute

which he has not agreed so to submit.” Id. at 582 (emphv-

sis supplied).

American Mfg. Co. involved a grievance filed on behalf

of an employee over reemployment rights after a disabling

accident. The contract provided that “[a]ny disputes, mis-

understandings, differences or grievances arising between

the parties as to the meaning, interpretation and applica-

tion of the provisions of this agreement, which are not ad-

justed as herein provided, may be submitted to the Board

of Arbitration for decision. ...” The employer relied on a

clause which stated as follows:

The Management of the works, the direction of the

working force, plant layout and routine of work, in-

TRE ER Ee ER OT TT St OE Se nae fe ts

Al7

cluding the right to hire, suspend, transfer, discharge

or otherwise discipline any employee for cause, such

cause being: infraction of company rules, inefficiency,

insubordination, contagious disease harmful to others,

and any other ground or reason that would tend to

reduce or impair the efficiency of plant operation; and

to lay off employees because of lack of work, is re-

served to the Company, provided it does not conflict

with this agreement... .

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 565,

n.2.

The norma! grievance procedures had been followed prior

to suit.

Warrior involved a dispute over the right of the com-

pany to subcontract part of its work resulting in a partial

reduction in the working force. The arbitration clause of

the contract provided in part:

Should differences arise between the Company and

the Union or its members employed by the Company

as to the meaning and application of the provisions of

this Agreement, or should any local trouble of any

kind arise, there shall be no suspension of work on

account of such differences but an earnest effort shall

be made to settle such differences immediately in the

following manner: .. .

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at

576.

The company relied upon a paragraph in the agreement

which stated that “[M]atters which are strictly a func-

ti» of management shall not be subject to arbitration

unde: this section.” Id. at 588. The normal grievance pro-

cedures had been followed prior to suit.

a ia i I

Al8

In this case the dispute concerned failure to success-

fully negotiate increased wages for all employees under a

wage reopening clause. The two arbitration clauses con-

tained no genera! language similar to the Warrior or

American Mfg. Co. cases.2 The language was very specific

in referring first to grievances of employees and the presen-

tation of those grievances to management and later to ar-

bitration; and second to the specific question of portions of

the contract which might later be invalidated by law. The

contract specifically provided that wages on reopening

were to be negotiated (rather than arbitrated) and the

arbitration clause contained a provision prohibiting the

arbitrator from adding to, subtracting from or changing

the terms of the contract. The specified grievance pro-

cedures were not followed and after negotiations broke

down the union filed its suit to compel arbitration.

This case can be distinguished from American Mfg.

Co. and Warrior in four significant ways: first, in the

wording of the arbitration clause; second, in the subject

matter of the controversy; third, in the strength and clarity

of the clauses relied upon by management to show arbitra-

tion was not intended; and, fourth, in the grievance pro-

cedures followed in Warrior and American Mfg. Co. and

ignored here. The distinctions ::re both obvious and sig-

nificant. In American Mfg. Co. and Warrior the wording

of the arbitration clause was broad. Here it is narrow and

specific. In American Mfg. Co. and Warrior the grievances

related to questions which may or may not have been re-

served to management in the contract. Certainly in each

2. The arbitration clause in American Mfg. Co. was described

by the Court as the “standard form.” Id. at 565. The fact that

the parties in the instant action did not adopt the standard form

indicates an intent to depart from the customary industry prac-

tices concerning the scope of arbitration clauses which the prin-

ciples enunciated in American Mfg. Co. and Warrior character-

istically control.

PECOPS ee PEPE ne i ee ce

et ee ee See a

Aig

case there was a gray area involved. In this case the dis-

pute related to wages on reopening, a subject traditionally

reserved to negotiations.* In Warrior the employer relied

or clauses in which the rights of management were re-

ferred to but not specifically defined. In American Mfg.

Co. the clause relied on by the employer did not really

cover the question presented by the arbitration. But by

the terms of the agreement in this case the arbitrator was

expressly forbidden to change any term of the contract.

In Warrior and American Mfg. Co. normal grievance pro-

cedures were followed prior to suit. In this case no pretext

was made by the union of following the grievance pro-

cedures specified in the contract.

These distinctions become especially significant in

light of some of the holdings of Warrior. First, as hereto-

fore stated, the majority opinion made it clear that the

court must first determine whether or not the parties have

contracted to arbitrate a particular dispute:

The Congress, however, has by § 301 of the Labor

Management Relations Act, assigned the courts the

duty of determining whether the reluctant party has

breached his promise to arbitrate. For arbitration is

a matter of contract and a party cannot be required to

submit to arbitration any dispute which he has not

agreed so to submit.

3. We believe that in general, “[d]isputes to ‘rights’ are

adjudicable under the laws or agreements on which the nights are

policy which, for lack of predetermined standards, are not gen-

erally as justiciable or arbitrable.” ELKOURI AND

ELKOU HOW ARBITRATION WORKS (3d ed. 1973). See

y oat — pet tt Ee OR

concerning i ility j “minor”

disputes, and the different treatment accorded thereto in the rail-

=

A20

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582

(emphasis supplied).

This holding, it should be noted, was a predicate for the

holding which indicated that doubts should be resolved in

favor of coverage. Resolving doubts under a contract is

obviously not the same as stating that anything which is

not excluded is, by implication, included. In our opinion,

there is simply no doubt to be resolved in this case.

Second, the Court in Warrior placed special emphasis

on the broad arbitration clause in the Warrior contract

when it said:

In the absence of any express provision excluding a

particular grievance from arbitration, we think only

the most forceful evidence of a purpose to exclude the

claim from arbitration can prevail, particularly where,

as here, the exclusion clause is vague and the arbiira-

tion clause quite broad.

Id. at 584-585 (emphasis added).

In American Mfg. Co., Justice Brennan, concurring,

stated:

The Court rightly concludes that appropriate regard

for the national labor policy and the special factors

relevant to the labor arbitral process, admonish that

judicial inquiry into the merits of this grievance should

be limited to the search for an explicit provision which

brings the grievance under the cover of the exclusion

clause since “the exclusion clause is vague and ar-

bitration clause quite broad.”

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 572

(emphasis supplied).

PPR PREP OPO EE LTE ERLE SO —— —

SRS TRIESTE IT ERROR BSE les gad WAP tr

A21

As heretofore indicated, the arbitration clause in this case

is yery narrow and the exclusion clause is certainly not

vague.

Third, in both Warrior and American Mfg. Co. the

Court held that it was not really clear under the contract

whether the particular dispute in issue involved a matter

specifically reserved to management. It stated in Warrior:

Respondent claims that the contracting out of work

falls within this category. Contracting out work is the

basis of many grievances; and that type of claim is

grist in the mills of the arbitrators.

Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 584.

And in American Mfg. Co. the Court stated:

The union claimed in this case that the company

had violated a specif‘c provision of the contract. The

company took the position that it had not violated that

clause. There was, therefore, a dispute between the

parties as to “the meaning, interpretation and applica-

tion” of the collective bargaining agreement.

Steelworkers v. American Mfg. Co., supra, 363 U.S. at 569.

No such interpretation of the contract is possible in this

case. The subject of wages is traditionally reserved to

negotiation and is not normally subject to arbitration.

Since the Steelworkers’ trilogy in 1960,‘ there have

4. Prior to the Steelworkers’ trilogy several cases involv-

ing this question were the subject of arbitrators’ decisions. In

the following cases the fact that a collective bargaining agreement

contained @ wage reopener did not oblige the parties to agree on

wage increases. Thus disputes arising upon impasses in negotia-

tions under a wage reopener were held to be nonarbitrable. P. P.

Williams Co., 24 Lab. Arb. 587 (1955); West Penn Power Co., 24 .

Lab. Arb. 741 (1955); Air Reduction Sales Co., 10 Lab Arb. 528

(1948); In re Berger, 9 Lab. Arb. 1048 (1948). Cases taking the

opposite view include: Sacramento Wholesale Bakers Ass’n, 20

Lab. Arb. 106 (1952); Lincoln Dairy Co., 14 Lab. Arb. 1055 (1950).

By Snmgtenr eae =

RT PI RS

a

EERO gen TE

A22

been no cases decided in federal courts involving this pre-

cise issue that have been called to our attention. However,

there have been at least two arbitrator’s decisions on cases

very similar to this one.

In Hughes Tool Co., 36 Lab. Arb. 1125 (1960) the ar-

bitrator held that the contract could not be construed to

require arbitration of wages on reopening in a factual

situation similar to this case. In that case the arbitrator

placed special emphasis on a clause which provided that

an arbitrator could not change or modify any provision of

the agreement. In Hughes Tool Co. there was also a much

broader arbitration clause than is present in this case.

In Rose-Derry Ohio, Inc., 49 Lab. Arb. 40 (1967) the

opposite result was reached but great emphasis was placed

on the fact that the arbitration clause was very broad pro-

viding that “and and all . . . disputes or controversies . . .

including any matter relating to wages . . . not specifically

covered herein, shall be . . . resolved in the following man-

ner.” Rose-Derry Ohio, Inc., supra, 49 Lab. Arb. at 44 (em-

phasis supplied). This clause alone serves to distinguish

that case from this one.

For these reasons we feel it is clear that this case can

be logically distinguished from Warrior and American Mfg.

Co. and believe that the trial court’s decision represents

an unwarranted extension of the holding of those cases.

One further word seems appropriate about the quid pro

quo theory. In our opinion this theory was best described

by Justice White in his majority opinion in Drake Bakeries

v. Bakery Workers, 370 U.S. 254, 261 n.7 (1962) when he

stated as follows:

We do not understand the opinions in Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 455, or

United Steelworkers v. American Mfg. Co., 363 US.

A23

564, 567, to enunciate a flat and general rule that these

two clauses are properly to be regarded as exact

counterweights in every industrial setting, or to justify

either party to the contract in wrenching them from

their context in the collective agreement on the ground

that they are mutually dependent covenants which

are severable from the other promises between the

parties.

See also Teamsters Local 174 v. Lucas Flour Co., 369 U.S.

95, 106 (1962) wherein the Court stated as follows:

What has been said is not to suggest that a no-

strike, agreement is to be implied beyond the area

which it has been agreed will be exclusively covered

by compulsory terminal arbitration. Nor is it to sug-

gest that there may not arise problems in specific

cases as to whether compulsory and binding arbitra-

tion has been agreed upon, and, if so, as to what dis-

putes have been made arbitrable.

In other words; while the two clauses may be a

quid pro quo for each other in a general sense, it does not

necessarily mean that the parties cannot limit their ap-

plication by the terms of the agreement. Often no-strike

clauses contain specific exceptions relating to failure to

agree upon wages in a wage reopening negotiation. By

the same token the contract must be examined to deter-

mine what the parties intended to arbitrate and what they

did not intend to arbitrate just as Justice Douglas indicated

in Warrier. Steelworkers v. Warrior & Gulf Co., sup7a,

363 U.S. at 582.

Judge Heaney notes that “[c]Joncern has been ex-

pressed that the effect of this opinion will be to make mid-

term wage “isnutes in multi-year contracts subject to

arbitration wi .cver a collective bargaining agreement

A24

contains an arbitration and a no-strike clause.” He then

indicates that the parties can by agreement “exclude such

dispute from arbitration.” I find no fault with that reason-

ing but what will the effect be on hundreds of existing

multi-year labor contracts within this seven-state circuit?

Although these opinions by an equally divided Court create

no binding precedent for the Eighth Circuit, the argument

will certainly be made that arbitration of wage disputes

on reopening is a right the union may claim in any case in

which the contract u:cludes a no-strike clause and does

not specifically prohibit .rbitration of wage disputes.

We would reverse with irections to dismiss.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A25

APPENDIX B

Judgment

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

No. 72-1731

September Term, 1973

Laundry, Dry Cleaning and Dye House Workers Inter-

national Union, Local 93 of Springfield, Missouri,

Appellee,

vs.

Robert M. Mahoney, Joyce B. Mahoney, Michael Mahoney,

Patrick Mahoney, and Jeffrey Mahoney, d/b/a Bormon

Investment Company, American Laundry Company and

Colonial Linen Service,

Appellants.

(Filed January 22, 1974)

APPEAL FROM the United States District Court for the

Western District of Missouri.

Tuts CAUSE came on to be heard on the record from

the United States District Court for the Western District

of Missouri and was argued by counsel.

On CONSIDERATION WHEREOF, it is now here ordered

and adjudged by this Court, that the judgment of the said

District Court, in this cause, be, and the same is hereby,

affirmed, in accordance with the opinion of this Court

this day filed herein.

January 22, 1974

SE PER FESR ERTL TL EL NS EE TET

ps bh

No

A26

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 72-1731

September Term, 1973

Laundry, Dry Cleaning and Dye House Workers Inter-

national Union, Local 93 of Springfield, Missouri,

Appellee,

vs.

Robert M. Mahoney, et al,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri

The Court having considered petition for rehearing

en banc filed by counsel for appellant and, being fully ad-

vised in the premises, it is ordered that the petition for

rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

February 13, 1974

EI ESE SEER OE

A27

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

. No. 72-1731

September Term, 1973

Laundry, Dry Cleaning and Dye House Workers Inter-

national Union, Local 93 of Springfield, Missouri,

Appellee,

VS.

Rokezt M. Mahoney, Joyce B. Mahoney, Michael Mahoney,

Patrick Mahoney, and Jeffrey Mahoney, d/b/a Bormon

Investment Company, American Laundry Company and

Colonial Linen Service,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri

On consideration of the motion of appellants for a stay

of the mandate in this cause pending a petition to the

Supreme Court of the United States for a writ of certiorari,

it is now here ordered by this Court that the issuance of

the mandate herein be, and the same is hereby, stayed for

a period of thirty days from and after March 6, 1974, and

if within said period of thirty days there is filed with the

Clerk of this Court a certificate of the Clerk of the Su-

preme Court of the United States that a petition for writ

of certiorari and record have been filed, the stay hereby

granted shall continue until the final disposition of the

case by the Supreme Court.

March 6, 1974

a) ESE TERING RRS A 2 Clty ERE IE TR RMR ERTIES IRENE, Ty RE ECS 5 Om

Sep. 2S

A28

>

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 72-1731

Laundry, Dry Cleaning and Dye Hous: Workers Inter-

national Union, Local 93 of Snringiield, Missouri,

Appellee,

V.

‘ Robert M. Mahoney, Joyce B. Mahoney, Michael Mahoney,

Patrick Mahoney, and Jeffrey Mahoney, d/b/a Bormon

Investment Company and Colonial Linen Service,

Colonial Linen Service,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri.

Submitted: April 26, 1973

Filed: August 16, 1973

Before HEANEY, BRIGHT and Ross, Circuit Judges.

Heaney, Circuit Judge.

The principal i issue raised on this appeal is whether the

trial court erred in requiring the parties to a collective

bargaining agreement to submit a mid-contract wage dis-

pute to binding arbitration.

On August 8, 1968, the Union entered into a collective

bargaining agreement with the then owner of the business.

Article XX of the agreement provides:

Rpt Rete rey ow eae? sn GRE PE ALE SIM LI LAINE LEN LEN LG RE Re Se ie. ae Te Svante

A29

“Section 1. This agreement shall remain in full force

and effect until August 8, 1973, and from year to year

thereafter, unless sixty (60) days prior to August 8,

1973, or any year thereafter, the Union notifies the

Employer or the Employer notifies the Union of its

desire to terminate or modify this Agreement. This

notice must be written.

Section 2. Either the Employer or the Union shall

have the right as of August 8, 1971, to reopen for

negotiation on the subject of wages and seniority only,

upon either party giving written notice to the other at

least sixty (60) days prior to such reopening date. In

the absence of such notice, ‘he existing conditions shall

continue to remain in effect until the expiration date

of the Agreement.”

Thereafter, most of the assets of the business were sold to

the Bormon Investment Company, and that firm became

obligated to abide by the terms of the agreement as a suc-

cessor employer.

The Union and the Employer exercised their option to

reopen the contract on wages and seniority by giving a

timely notice. The parties were unable to reach an agree-

ment on either issue. The Union demanded that the un-

resolved issues be submitted to arbitration. The Employer

refused on the grounds that it was not obligated to arbitrate

these issues. The Union then brought an action seeking to

require the Employer ‘o submit the dispute to arbitration.

The agreement generally establishes wage rates and

working conditions. It specifically provides:

A30

“ARTICLE I.

“Purpose

“Section 1. It is the intent and purpose of the parties

hereto, to set forth herein their basic agreement cover-

ing wages, hours of work, and conditions of employ-

ment to be observed between the parties hereto, and

to provide procedures for the prompt, and equitable

adjustment of all grievances and disputes arising be-

tween the Employer and the Union or any employee or

employees covered by this Agreement.

“28

“ARTICLE XIII.

“No Strike or Lockout

“Section 1. There shall be no strikes, stoppages, slow-

downs, or concerted activity interrupting or interfering

with production, or lockouts, for any reason whatso-

ever during the life of this Agreement.”

It also contains a grievance and arbitration clause

which reads as follows:

“ARTICLE XIV.

“Grievance and Arbitration

“Section 1. It is hereby agreed that the Union may

have one (1) duly accredited representative to be

known as the ‘Steward’ in each plant to be selected by

the Union. It shall be his or her duty to receive com-

plaints and to present them to the management. * * *

“Section 2. In order to determine the existence and/

or validity of a grievance, the Steward shall notify the

Plant Manager or his designated representative of the

emarsc- ~1-7

A31

charge by an employee, and as soon as practicable, the

Steward und the Employer representative shall discuss

the matter with the view of resolving the issue if

possible. * * *

“Section 3. If the grievance is not settled in the man-

ner set forth in Section 2 within two (2) working days

after the Steward has first discussed it with the Plant

Manager, it shall be reduced to writing and considered

between the Business Agent and Company represen-

tatives.

“Section 4. If not settled within five (5) working

days as set forth in Section 3, the matter shall be re-

ferred to arbitration.

“Section 5. Each party shall select an arbitrator [.]

* * * Should there be no agreement between the two

arbitrators as to the third arbitrator, application shall

be made to the Federal Mediation and Conciliation

Service in Washington, D. C., for a panel of five (5)

nominees. The parties shall alternate in striking two

names each and the remaining shall be the impartial

arbitrator. The arbitrator shall not have the power

to add to, subtract from, or change the terms of the

contract. The decision of a majority of the panel shall

be final and binding. * * *

“ARTICLE XVIII.

“Savings Clause

“Section 1. If any law now existing or hereinafter

enacted, or any prociamation, regulation, or edict of

any state or national agency shall invalidate any por-

tion of this Agreement, the entire Agreement shall

not be invalidated, and either party hereto, upon

A32

notice to the other, may reopen for negotiation the

invalidated portion, and if agreement thereon cannot

be reached, within thirty (30) days, either party may

submit the matter to arbitration as herein provided.”

The matter was submitted to the trial court on cross-

motions for summary judgment. The court initially deter-

mined that the question of arbitrability was for it to de-

cide. It then held, on the authority of the United Steel

Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574

(1960), that the dispute was arbitrable because no forceful

evidence of an intent or purpose to exclude the dispute from

arbitration was evidenced.

The Employer argues on appeal: (1) that they are

under no obligation to arbitrate any wage and seniority is-

sues; (2) that their only obligation under the agreement is

to negotiate on the two issues, and they have fulfilled that

obligation; (3) that arbitration is only available to resolve

employee grievances, and then only after such grievances

have been processed in accordance with Sections 1, 2, 3 and

4 of Article XIV of the agreement; and (4) that, here, no

grievance exists, and that the dispute between the Em-

ployer and the Union was not processed in accordance with

the above sections.

The trial court correctly held that the issue of ar-

bitrability was one for it to decide. John Wiley & Sons v.

Livingston, 376 U.S. 543 (1964); Drake Bakeries v. Local

50, 370 U.S. 254 (1962). It also properly decided that the

mid-term contract dispute between the Employer and the

Union over wages and seniority is an arbitrable one.

Warrior teaches:

“The Congress, however, has by §301 of the Labor

Management Relations Act, assigned the courts the

duty of determining whether the reluctant party has

ge PRT ee -

A33

breached his promise to arbitrate. For arbitration is

a matter of contract and a party cannot be required

to submit to arbitration any dispute which he has not

agreed so to submit. Yet, to be consistent with con-

gressional policy in favor of settlement of disputes by

the parties through the machinery of arbitration, the

judicial inquiry under §301 must be strictly confined

to the question whether the reluctant party did agree

to arbitrate the grievance or agreed to give the arbitra-

tor power to make the award he made. An order to

arbitrate the particular grievance should not be denied

unless it may be said with positive assurance that the

arbitration clause is not susceptible to an interpretation

that covers the asserted dispute. Doubts should be

resolved in favor of coverage.

“* * * In the absence of any express provision ex-

cluding a particular grievance from arbitration, we

think only the most forceful evidence of a purpose to

exclude the claim from arbitration can prevail, par-

ticularly where, as here, the exclusion clause is vague

and the arbitration clause quite broad. Since any at-

tempt by a court to infer such a purpose necessarily

comprehends the merits, the court should view with

suspicion an attempt to persuade it to become entangled

in the construction of the substantive provisions of a

labor agreement, even through the back door of in-

terpreting the arbitration clause, when the alternative

is to utilize the services of an arbitrator.”

United Steel Workers v. Warrior and Gulf Navigation Co.,

supra at 582, 584-585. Accord, Local Union No. 4, IBEW,

AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th

Cir. 1972); Builders Ass’n of Kansas City v. Greater Kansas

A34

City Lab. D. C., 326 F.2d 867 (8th Cir.), cert. denied, 377

U.S. 917 (1964).

We are convinced, as was the trial court, that it can-

not be said with positive assurance that the arbitration

clause is not susceptible to an interpretation that covers

the asserted dispute. Although the “Grievance and Ar-

bitration” clause speaks of employee grievances, the “Pur-

pose” clause of the agreement asserts that the agreement is

intended to provide “procedures for the * * * equitable ad-

justment of all grievances and disputes arising between

the Employer and the Union * * *.” If the contract is to

be read as a whole, as it must, Montana-Dakota Utilities

Co. v. N.L.R.B., 455 F.2d 1088 (8th Cir. 1972), effect should

be given to this language. Moreover, the absolute nature

of the “No Strike” clause is an added reason for interpreting

the agreement to require arbitration of the dispute. United

Steel Workers v. Warrior and Gulf Navigation Co., supra;

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

(1957). Finally, the “Savings Clause” speaks of submitting

' matters other than grievances to “arbitration as herein

provided,” thus evidencing some intent that matters other

than grievances are to be submitted to arbitration.

In summary, there is sufficient ambiguity in this argu-

ment to trigger the Wartior rule.”

1. See, 85 HARV. L. REV. 636 (1972); Griswold, The Su-

preme Court 1959 Term, 74 HARV. L. REV. 81, 181 (1960) ; 59

MICH. L. REV. 454 (1961); 45 MINN. L. REV. ‘282 (1960); The

‘ee Law of Labor Injunctions, 79 YALE L. J. 1593

2. The ae cases cited by the Employer are distinguish-

able on their facts: est Coast Te Co. v. Local U. No. 77,

Int. Bro. of Elec. Wkrs., 431 F.2d 1219 (9th Cir. 1970); Federal

Labor Union No. 18887 v. Midvale-Heppenstall Co., 421 F.2d 1289

(3rd Cir. 1970); Radio Corp. cf Am. v. Association of Scientists &

Pro. Eng. P., 414 F.2d 893 3 (ard Cir. 1969). In each case, the col-

lective bargaining agreement made it clear that the issue the

Union sought to arbitrate was, in fact, non-arbitrable. See also,

Firestone Tire and Rubber Co. v. International Union Etc., 476

F.2d 603 (5th Cir. 1973); Ford v. General Electric Co., 395 F.2d 157

(7th Cir. 1968).

— ;

A35

We recognize that the Employer’s arguments that the

: dispute is not arbitrable are not without merit. The “Ar-

bitration” clause directs its attention to a three-step pro-

cedure for the adjustment of employee grievances and does

not specifically state that it is intended to resolve disputes

between the Employer and the Union, but the clause can-

not be read in isolation from the other sections of the

agreement. The “Arbitration” clause also states that “the

arbitrator shall not have the power to * * * change the

terms of the contract.” But, we do not believe that this re-

striction is applicable where the agreement is reopened

pursuant to its terms on the issues of wages and seniority,

particularly as the “Purpose” clause states that the parties

intend that all disputes be resolved promptly and equit-

ably. Finally, the “Termination” clause speaks of the right

of either the Employer or the Union to reopen the contract

for negotiations on the subject of wages and seniority, and

does not expressly require the parties to submit disputes

arising out of the negotiations to arbitration. Yet, it fails

to exclude such disputes from arbitration, and we read

Warrior as requiring exclusionary language where the

agreement can otherwise be read as expressing an intent

that all disputes be submitted to arbitration.

We find no merit to the Employer’s contention that the

judgment against three minor defendants should be set

aside because it was imposed on them without the prior

appointment of a guardian ad litem. The first exception

to Rule 17(b), 28 U.S.C., permits a partnership to be sued

in its common name for the purpose of enforcing against it

a substantive right existing under the laws of the United

States. The right to arbitrate is such a right.

Moreover, the trial court properly found that the

minors interests were adequately protected by the presence

of their parents as defendants. See, Westcott v. United

States Fidelity and Guaranty Company, 158 F.2d 20 (4th

OE reer ses meee nL Le AS etc . Sa See

A36

Cir. 1946); Rutland, Administrator v. Sikes, et al., 203 F.

Supp. 276 (E.D. S.C.), aff'd, 311 F.2d 538 (4th Cir. 1962),

cert. denied, 374 US. 830 (1963).

Affirmed.

Ross, Circuit Judge, dissenting.

I find no fault with the majority’s explication of the

law in this case, but I consider its application of that law

to the facts to be erroneous. In my opinion, it is clear from

a reading of the contract as a whole that the agreement

was not intended to provide for arbitration of wage dis-

putes arising out of the reopening clause.

ARTICLE XX governs the procedures to be followed

in reopening negotiations on the subjects of wages and

seniority only. ARTICLE XIV provides the machinery

for resolving grievances and does so in terms which strongly

suggest that the grievances intended to be arbitrated are

those between the company and individual employees with

the assistance of the steward. It provides that the steward

shall receive and present the complaints to management

and also provides for the possibility of the steward and the

employer resolving the issue between themselves. If it is

not settled within two days, then it is reduced to writing

and “considered between the Business Agent and Com-

pany representatives.” Then if not settled within five (5)

working days, it is referred to arbitration. None of these

terms nor anything else contained in ARTICLE XIV is con-

sistent with the normal wage renegotiation procedure con-

templated by ARTICLE XX.

ARTICLE XVIII provides for arbitration in the event

of the invalidation by law of any portion of the agreement

and the failure of the parties to renegotiate the invalidated

clause within thirty (30) days. This shows clearly the in-

Sey

Se ee — 234

NN

A37

tent of the parties to provide for arbitration in a limited

sector other than individual grievances. The failure of the

parties to provide for arbitration in a wage reopening con-

text in this paragraph is an indication of their determina-

tion to limit the use of arbitration to the general areas

specifically mentioned in the agreement.

It is worthy of note that ARTICLE XIV, Section 5,

provides that the arbitrator “shall not have the power to

add to, subtract from, or change the terms of the contract.”

The decision of the majority permits the arbitrator to

change the most significant terms of the agreement be-

tween the parties, a right which the parties themselves re-

served to negotiation rather than to arbitration.

In United Steelworkers v. Warrior & Gulf Navigation

Co., 363 U.S. 574 (1960) the Supreme Court had before it

a case in which the union claimed that the subcontracting

of work to another company amounted to a lockout, which

was forbidden by the terms of the labor agreement. It

specifically held that there was “a dispute ‘as to the mean-

ing and application of the provisions of this Agreement’

which the parties had agreed would be determined by ar-

bitration.” Id. at 585. It further indicated that “Tc]ontract-

ing out work is the basis of many grievances; and that type

of claim is grist in the mills of the arbitrators.” Id. at 584.

As I view it in Warrior, there was evidence that the general

subject of “contracting out” was intended to be a part of

the agreement. Here there is ample evidence that not only

were wages and seniority not arbitrable after an unsuccess-

ful reopening, but indeed the problems relating thereto

couldn’t even be correctly classified as grievances under the

agreement.

Builders Ass’n of Kansas City v. Greater Kansas City

Lab. D. C., 326 F.2d 867 (8th Cir.), cert. denied, 377 US.

917 (1964) is likewise distinguishable. In that case the

>

FS SPIE a Recs ?

A38

arbitration clause was much broader and the dispute re-

sulted from the failure of the employers’ association and

union to conform to their undertaking to agree upon a trust

agreement relating to health and welfare insurance. The

cost of the plan was not in dispute. In other words, the

arbitrator was called upon to interpret what had already

been agreed upon in principle and in cost to the company.

In this case, the majority is extending this rule to permit

an arbitrator te set new wage rates for the balance of the

term of the agreement in spite of the fact that neither

party has obligated itself to agree to lowering or raising

wages during such term.

I would reverse with directions to dismiss.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

A39

APPENDIX F

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

Civil Action No. 2831

LAUNDRY, DRY CLEANING AND DYE HOUSE

WORKERS INTERNATIONAL UNION, LOCAL NO.

93 OF SPRINGFIELD, MISSOURI,

Plaintiff,

mse vs.

ROBERT M. MAHONEY, et al.,

Defendants.

Memorandum and Order Granting Plaintiff’s Motion

for Summary Judgment, Denying Defendants’ Motion

for Summary Judgment, and Directing Parties to

Submit Dispute to Arbitration

(Filed September 11, 1972)

This action is brought under Section 301 of the Labor

Management:Relations Act of 1947, 29 U.S.C. § 185. Pres-

ently pending before the Court are the cross-motions of

the parties for summary judgment. At a pretrial con-

ference, on August 7, 1972, the parties agreed that there

are no disputed issues of fact and that this cause may be

determined on the basis of the record before the Court

without hearing.

The claim herein, in effect, seeks an order enforcing

arbitration of dispute arising out of a collective bargaining

agreement. The agreement (Exhibit A, attached to the

complaint) provides in Article XX, Section 1, that it “shall

remain in ful! force and effect until August 8, 1973.” Un-

—_

a, ee < PEAT,

A40

der Section 2 of Article XX, the parties have the right “to

reopen for negotiation” the subjects of “wages and senior-

ity only” as of August 8, 1971. The option provided for in

Article XX, Section 2, was exercised by the parties and

negotiations on both wages and seniority were had. How-

ever, no agreement has been reached in regard to the issue

of wages. Plaintiff contends that the agreement provides

that binding arbitration is the means of resolving the dis-

pute. Defendant, however, contends that the reopening

clause provides only for negotiation and not for arbitration,

and that there is no provision for arbitration of such dis-

putes contained in the agreement.

The pertinent provisions of the collective bargaining

agreement are as follows:

ARTICLE I.

Purpose

Section 1. It is the intent and purpose of the parties

hereto, to set forth herein their basic agreement cover-

ing wages, hours of work, and conditions of employ-

ment to be observed between the parties hereto, and

to provide procedures for the prompt, and equitable

adjustment of all grievances and disputes arising be-

tween the Employer and the Union or any employee

or employees covered by this Agreement.

& ARTICLE XIII.

No Strike or Lockout

Section 1. There shall be no strikes, stoppages, slow-

downs, or concerted activity interrupting or inter-

fering with production, or lockouts, for any reason

whatsoever during the life of this Agreement.

OEE: LI NS PIA EGON ST HFK LD, ay Aehier £0 SR RES SEG ER RR Db tie A RR YY

A4l1

ARTICLE XIV.

Grievance and Arbitration

Section 5. Each party shall select an arbitrator; the

Union shall be represented by an International Repre-

sentative, and the Employer by its labor counsel.

Should there be no agreement between the two ar-

bitrators as to the third arbitrator, application shall be

made to the Federal Mediation and Conciliation Serv-

ice in Washington, D.C., for a panel of five (5) nomi-

nees. The parties shall alternate in striking two

names each and the remaining shall be the impar-

tial arbitrator. The arbitrator shall not have the power

to add to, subtract from, or change the terms of the

contract. The decision of a majority of the panel shall

be final and binding. Each party shall bear the ex-

pense of its arbitrator; the expenses of the impartial

arbitrator shall be shared equally by the parties.

ARTICLE XX.

Termination

Section 1. This agreement shall remain in full force

and effect until August 8, 1973, and from year to year

thereafter, unless sixty (60) days prior to August 8,

1973, or any year thereafter, the Union notifies the

Employer or the Employer notifies the Union of its

desire to terminate or modify this Agreement. This

notice must be written.

Section 2. Either the Employer or the Union shaJ!

have the right as of August 8, 1971, to reopen for neégo-

tiation on the subject of wages and seniority only,

upon either party giving written notice to the other at

least sixty (60) days prior to such reopening date. In

the absence of such notice, the existing conditions shall

—

EEO PED

A42

continue to remain in effect until the expiration date

of the Agreement.

The contract does not define grievances, disputes or

arbitration in any other way than that set out above. Not

since the Steelworkers trilogy has there been any question

that federal labor policy favors the arbitration of disputes.

See United Steelworkers v. American Mfg. Co., 363 U.S.

564; United Steelworkers v. Warrior & Gulf Co., 363 U.S.

574; United Steelworkers v. Enterprise Corp., 363 U.S. 593.

In American Mfg. Co., supra, at 567, 568, the court held

that if arbitration is provided for by the parties themselves, :

“the function of the court is very limited” and “is confined

to ascertaining whether the party seeking arbitration is

making a claim which on its face is governed by the con-

, tract.” In a concurring opinion, Justice Brennan stated

“since arbitration is a creature of contract, a court must

always inquire, when a party seeks to invoke its aid to

force a reluctant party to the arbitration table, whether the

parties have agreed to arbitrate the particular dispute” and

that “the question of whether a dispute is ‘arbitrable’ is

inescapably for the court.”

The majority opinion in Warrior, supra, is of the same

' tenor 'as Justice Brennan’s concurring opinion in American

as to the function and ‘scope of the judicial inquiry that is

to be made in an action to enforce an arbitration agree-

ment, holding that since “arbitration is a matter of contract

...a party cannot be required to submit to arbitration any

dispute which he has not so agreed to submit.” Warrior

was explicit in establishing the standards of judgment to

be applied and followed in cases of this nature, holding:

Yet, to be consistent with congressional policy in favor

of settlement of disputes by the parties through the

machinery of arbitration, the judicial inquiry under §

oe 7 < pl re PIRES ee REN SIE SLR RCI, COE

—

A43

301 must be strictly confined to the question whether

the reluctant party did agree to arbitrate the grievance

or did agree to give the arbitrator power to make the

award he made. An order to arbitrate the particular

grievance should not be denied unless it may be said

with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the

asserted dispute. Doubts should be resolved in favor

of coverage.

And, more specifically:

Apart from matters that the parties specifically ex-

clude, all of the questions on which the parties dis-

agree must therefore come within the scope of the

grievance and arbitration provisions of the collective

agreement.

And:

In the absence of any express provision excluding

particular grievance from arbitration, we think only

the most forceful evidence of a purpose to exclude

the claim from arbitration can prevail. . . .”

Warrior, supra, at 1352, 1353.

In Greater Kansas City Laborers District Council of

the International Hod Carriers, Building and Common

Laborers Union of America of Greater Kansas City and

Vicinity v. Builders’ Association of Kansas City, (W.D.

Mo.) 213 F. Supp. 429, aff'd 326 F. 2d 867, cert. den. 377

U.S. 917, Judge Oliver summarized the scope of judicial

inquiry as established by the Steelworkers trilogy as fol-

lows at 433:

Stated simply, our judicial inquiry is “strictly con-

fined” by Congress aid the Supreme Court to an ex-

amination of the parties’ complete intent and our de-

A44

termination of that question is to be aided by our

resolution of doubt in favor of coverage, particularly

when it can not be said with “positive assurance that

the arbitration clause is not susceptible of an inter-

pretation” of coverage and particularly when the par-

ties have not “specifically excluded” the arbitration

of the particular difference involved. in the latter

situation “only the most forceful evidence of a pur-

pose to exclude” must be present before we can deny

coverage. .

The agreement herein does not by its own terms limit

what disputes or grievances are to be submitted to arbi-

tration. Article I of the Agreement states that the intent

of the agreement is to provide procedures for the “prompt

and equitable adjustment of all grievances and disputes

arising between the Employer and the Union.” Therefore,

the contract must be looked to for the procedures to be

supplied for such “prompt and equitable adjustment.” The

arbitration clause, Article XIV, Section 5, is the only ave-

nue available, since Article XIII specifically prohibits

strikes or lockouts. ~

Defendant claims that Article XIV, Section 5, prohib-

its arbitration of this matter for the reason that it con-

tains the provision that “the arbitrator shall not have the

power to add to, subtract from, or change the terms of

the contract.” Therefore, defendant contends, “it is clear

that an arbitrator could not set any new wage rates or pro-

vide for any new seniority provisions.” Moreover, de-

fendant states that merely because wages and seniority

are subject to negotiation and/or revision does not make

such issues amenable to arbitration.

Article XX, Section 2, however, recognizes that once

the issues of wages and seniority are reopened, the re-

Mckestsseaes lee

ee ae ee a

A45

opened provisions of the contract are no longer rart of

the contract terms, since it states that “In the sbsence of

such notice, the existing conditions shall continue to re-

main in effect until the expiration date of the Agreement.”

More importantly, to deny arbitration of wage and

seniority dispute where negotiation has failed, would leave

the parties with no avenue of relief, and the wage and

seniority provisions of the contract would be lacking. In

a similar situation, Judge Oliver stated:

And what must be said as to the intention of the par-

ties in the event differences arose between them as to

the exact terms of the Trust Agreement? Certainly

neither party can now say that the provisions of the

arbitration clause would not come immediately into

play. How else can the problem ever be settled? And

settled it must be if the policy of the Congress in re-

gard to arbitration clauses in collective bargaining

agreements is carried out in accordance with the law

of the land as declared by the Supreme Court of the

United States in the cases we have cited.

Greater Kansas City Laborers’ District v. Builders’ Asso-

ciation, supra, at 434.

The significance of the “no strike, no lock-out” pro-

vision of the agreement cannot be overlooked. In Tertile

Workers Union of America v. Lincoln Mills of Alabama,

353 U.S. 448, the court held at 453:

Congress was also interested in promoting collective

bargaining that ended with agreements not to

Strike. .. .

And at 455:

Plainly the agreement to arbitrate grievance disputes

is quid pro quo for an agreement not to strike.

A46

Further, in American Mfg. Co., supra, at 567, the court

stated, “There is no exception in the ‘no strike’ clause and

none therefore should be read into the grievance clause,

since one is quid pro quo for the other. . . Arbitration *

is the stabilizing influence only as it Geen eb &: Vibddle

for handling every and all digoutes tht arise under the

agreement.” -

Since there is no limit upon the disputes covered by

the Agreement (Article I), the only procedure provided

for adjustment is arbitration, since Article XIII eliminates

the possibility of a strike or lockout to enforce demands. ;

“y The provision eliminating strikes and lockouts (Article bs

XIII), immediately precedes the grievance and arbitration

provisions (Article XIV). Thus, since Article I provides

that the contract provides procedures for the adjustment of

all disputes, the proximity of the two provisions is impor-

tant in determining the intent of the parties. It appears

from the Agreement itself that the “no strike” clause was

intended as a quid pro quo for the grievance and arbitra-

tion provision.

The affidavits of the parties in support of their cross-

motions for summary judgment do not establish that there

was an agreement that these issues—wages and seniority 4 ‘

under Article XX, Section 2—were not to be submitted

to arbitration in the event of a dispute. Nor does Article

XX, Section 2, provide that such issues are not to be pre-

sented to arbitration. “Undoubtedly the parties to the col- ce:

lective bargaining agreement could have excluded from

the arbitration clause any and all disputes . . . but they 7

did not do so.” Builders Association of Kansas City v.

Greater Kansas City Laborers’ District Council of the In-

ternational Hod Carriers, Building and Common Laborers

Union of America of Greater Kansas City and Vicinity,

(C.A. 8) 326 F. 2d 867, 869. The mere fact that Article

. 3

i

A47

XX, Section 2, provides specifically for “negotiation” does

not preclude arbitration when negotiation fails. See the

concurring opinion of Justice Brennan in American Mfg.

Co., supra, at 570. *

The Court finds on the basis of the evidence before

us that neither by express agreement nor by necessary

implication is the dispute herein one excluded from arbi-

tration. In the absence of any express provision exclud-

ing arbitration of this dispute, and with a lack of “force-

ful evidence of a purpose to exclude the claim from arbi-

tration” [Warrior, supra, at 1353] and in light of the fore-

going discussion, this Surt concludes. that there is no

real doubt that the arbitration clause is broad enough to

cover this dispute.

Accordingly, it is

ORDERED that plaintiff's motion for summary judg-

ment be granted and defendants’ motion for summary

judgment be denied; and

ORDERED that the parties, in accordance with their

agreement, proceed to arbitration of the grievances in-

volved in this case

‘s/ William Collinson

District Judge