Before SWAN, Chief Judge, CHASE and CLARK, Circuit Judges.
Per Curiam: The majority of the Court adheres to the opinion previously filed. Judge Clark dissents in the accompanying memorandum.
CLARK, C.J.: There are two important considerations suggested by the petition herein affecting the interpretation of this important collective bargaining agreement which I had hoped my colleagues might be induced to discuss. Since that has not happened, I think I should supplement my dissent by a specific, but brief, reference to them.
The first is that the interpretation now given the agreement not only greatly restricts the use of arbitration on employee and union claims, but eliminates it altogether on any claims of the employer. This is surely a peculiar cutting down of this important and separate "Article IX, Arbitration," which in its broad paragraph 72 covers a failure of "the two parties of this agreement" to make "a satisfactory adjustment of any dispute or grievance" and in its still broader paragraph 74 prohibits equally "lockouts" and "strikes" to state that "All complaints or grievances shall be settled in accordance with the full procedure outlined in this agreement." Had the draftsmen's intent been to make arbitration only the final step in the procedure for handling the individual employee's complaint or grievance, the natural course would have been to have stated the arbitration procedure not as a separate and general article, but as a final paragraph of the grievance procedure. See, for example, the Swift & Company agreement set forth in Gregory & Katz, Labor Law: Cases, Materials and Comments 1216, 1217 (1948).
There is a corollary to this agreement which suggests a serious dilemma in the interpretation made by the majority. This arises from the last paragraph, 71, of the grievance procedure of Article VIII covering a discharge of an employee and providing for activity by the Grievance Committee upon written notice of the discharge. Since this eliminates the first two rounds of the ordinary grievance procedure - foreman and employee and/or steward; general superintendent and chief steward - the basic argument of the opinion would require that this, too, be eliminated from the arbitration procedure. But this inclusive provision expressly referring to reinstatement "as a result of a decision of the Arbitration Board" makes such an interpretation impossible. Of course, the discharge of several or many employees can hardly reduce rights available to an employee singly discharged, and hence "lockouts," too, must be subject to arbitration. Yet strikes and lockouts are treated together in the arbitration provision, 74, quoted above; and it surely is a strain in interpretation to say that the first is not subject to arbitration while the second is.
The other consideration is defendants' contention that this agreement is in a standard form of such agreements in industry affecting some "15 million workers and their employers," that it disappoints the confident expectation of these workers as to the scope of arbitration, and that, unlike the simple two-party contract, the parties cannot renegotiate to state their intent without inclusion of a wide area of industry and without new and unexpected reciprocal concessions by the employees. While this contention cannot be fully explored now, its plausibility suggests that further support for the argument could be developed from published materials without too great difficulties. On the importance of arbitration clauses, I do find the judgment of one expert that "Employers and unions already know that there has to be some convenient and expeditious method for clearing up not only the routine grievances but also the more fundamental issues so frequently arising under collective agreements." Gregory, Labor and the Law, Rev.Ed., 405.
These and the other considerations originally stated, coupled with the significant importance of the issue involved, suggest to me the desirability of further discussion.